Helping through the investigation.

There are many possible outcomes after an interview under caution, either voluntary or under arrest. The investigators and prosecution can take a long time over progress. If asked to, we will chase the answers for our client. If you had no lawyer at interview or you want to make a change, then someone at Trinity Advocates can talk over with you what might happen next and get involved. Here is more detail on what can happen after interview

No further action/Not proceeded with.

This is what every suspect wants to hear: It means the police have finished investigations and recorded that there will be no court or police action as a result. There is no criminal or police record from what has been investigated. Very rarely, some new evidence or situation arises in the future that causes the police to reopen the investigation into that matter. The solicitor would seek to find out more for the client if that happened.

 

Charged

This only happens if the suspect has been arrested at some stage in the investigation and the police have decided they have enough evidence to put the allegation against the suspect formally at court (often after consulting with a prosecution lawyer from the Crown prosecution service).  If the suspect (now called a defendant) pleads guilty or is found guilty at one of the court hearings they are going to be labelled as “convicted” and face a punishment from the court.  The police and prosecution should only charge an offence if they believe on the evidence, they have a realistic prospect of proving the case against that suspect to the “evidential standard” and getting a conviction.

That evidential standard usually means proving the case so that a tribunal (like a Magistrates or a jury) would be sure of guilt. That gets called “proven beyond reasonable doubt” in the media but in court we are meant to use the phrase “satisfied so you are sure”.  Before deciding to charge the police and prosecution need to have considered the public interest in pursuing the case in court .  If the police/prosecution believe they can prove their case against the suspect then for public interest reasons the investigation might be resolved “out of court”: That might mean offering the suspect a police warning called a caution (not to be confused with the caution given at the start of police interview). It might mean diverting the suspect to a restorative justice project or to a local police scheme like “pathfinder” currently run by the Devon and Cornwall police. See “out of court disposals” below.

This page from the CPS gives more detail on making charging decisions. . https://www.cps.gov.uk/legal-guidance/charging-directors-guidance-2013-fifth-edition-may-2013-revised-arrangements

Charging might happen at the end of the first detention of the suspect or it might happen after the suspect has been asked to return to the police station after a period of time on bail or released under investigation (RUI). Trinity Advocates lawyers help our clients by trying to keep in touch with the police to find out if and when a charging decision might be reached and of course, we offer our clients advice how to respond to a decision to charge or if they are offered an out of court disposal .

 

Charging and a remand to court.

Someone charged might be remanded (which means the person does not get released until the next court hearing. If the police remand our clients then it will be up to the court at the first hearing whether to release the defendant on bail or to continue the remand in prison). We would do our best to work out if a remand to court is a risk and then look for arguments to persaude the police why to grant bail. If that does not work out we need to talk to our clients about how to best prepare an application to be released on bail at the next Magistrates court hearing (usually the next day, though Magistrates don’t sit Sundays and some bank holidays). We can help our clients make the best possible bail application by contacting people who offer bail addresses or bail sureties.

 

Charging and bail to court.

If our client is going to get charged then they want to be bailed by the police to a Magistrates court hearing date for a couple of weeks later. Failing to turn up at court or to a police station if you were bailed to come back during the course of an investigation is a criminal offence that can  be punished with a term in prison and can result in a court deciding to keep you in prison (remanding you) until the current case is over. Clients with a record of what are called “failing to surrender” offences often struggle to avoid being remanded by police or by the court.  It’s the same with clients who have a record for offending whilst on police or court bail, which gives the police or court a reason to refuse the defendant bail and to remand them.

Bail can be granted by the police and the courts with conditions if they think that just granting bail is not going to be enough to stop the defendant from offending or from interfering with the evidence or witnesses or from failing to turn up at their next court or police date . We can help anticiapte problems in getting bail and avoid a remand by suggesting and arguing for bail conditions with the police or court.  Bail condtions that might persaude the Court or police not to remand to prison can include the suspect;

  • reporting to a named police station on days and times agreed,
  • observing a curfew, managed by an electronic tag attached to the defendant and linked to a sensor in their nighttime residence (the machine detects if they are not in when they should be),
  • being excluded from certain places. For example from an area of shops if they have been shoplifting there or from a street where their suspected victim lives,
  • not to contact witnesses or victims named in the case (this will always include not to contact them through social media or by asking others to pass on messages).

That’s not all of the possible bail conditions that can be offered. Again, we can help suggest conditions to our clients.

A breach of a bail condition will result in arrest and production to court and then it is up to the court if it thinks that breach suggests the defendant should be remanded to prison for the rest of the case.

If you have been given bail conditions that are no longer practical or you consider unfair then if you don’t have a lawyer already you can talk to Trintiy Advocates about whether and how to challenge them.

For the police to remand to court or to link conditions to bail they have to have reasonable grounds to believe that the defendant will offend on bail or not come to court or interfere with witnesses.  For the Courts to remand to prison or justify conditions to bail,  they have to have substantial grounds to fear the same things will happen. Bail is more complicated for young people or if certain very serious charges are made. Suffice to say that courts and police should be expected to grant bail to anyone under 18 and you wont be surprised that murder suspects almost never get bail. People charged with serious sexual violence or manslaughter and already have another serious conviction on their record are also very unlikely to secure bail. This is another area the lawyer can help advise their clients on at the time.

 

Reported for Summons or postal requistion- Voluntary attenders (VA)

At the end of the voluntary attenders interview it is often unclear, especially without a lawyer about to advise, what is going to happen next. Police or investigators should be asked to give a timetable for what to expect. At the end of  the VA interview the police will have reported the suspect for summons and consideration for prosecution. This means that the prosecution might yet write to the court to request that the suspect is required to attend court to answer the allegation, in the same way someone answers a charge after arrest, and then faces a criminal conviction and a punishment on a guilty finding or guilty admission.

The police might use the postal requisition process to write to the suspect and tell them of the court date and time they need to answer the allegation. All these processes involve the suspect being written to at an address the suspect is known for and in that letter being told they need to attend court to answer the allegation.

Just because the police go through the reported for summons procedure at the end of an interview often does not mean the matter ends up at a criminal court. Usually we will advise and reassure at the time if we can tell that actually the police are looking at ways of resolving the investigation without going to court.

If anyone gets a summons or postal requisition we invite them to get in touch with one of us at Trinity Advocates, whether we helped them at interview or not. We will let them know if they need our help and whether they might get legal aid or what the private fee might be for more help. Just because the matter has been investigated without the need for an arrest and has been summonsed to court does not mean when the case comes before the court it wont involve difficult legal issues, questioning of witnesses or might not result in a significant conviction and punishment.

A lawyer can check if the summons or postal requisition has been issued correctly. There are rules that certain offences must be brought to the court by a notice sent to the suspect within a certain time frame of the police being aware of the alleged offence. Trinity Advocates lawyers have helped defendants avoid prosecution because the notice was sent too late or not in the correct form.

The defendant who does not turn up at court as required by the postal requisition or summons is at risk of being made the subject of a warrant of arrest, just so the court can get the person before it. A defendant who gives clear instructions to their lawyer can be excused from coming to court if the lawyer is able to make all the progress needed in their absence at the hearing.

When the summons or postal requisition is received it comes with forms to indicate the intended response of the defendant. We don’t recommend filling those in or returning the forms to the court until our clients have spoken to us.

 

Out of court disposals

An out of court disposal will need the suspect to have admitted the offence to the police already and for the police or prosecution lawyers to have decided it is in the public interest not to take the matter to court. The complaining person (the victim) will be asked about this and the past criminal history of the suspect will be important factors to deciding the public interest. As will the seriousness of the allegation. Also, the police will want to be confident that the offending is not going to carry on.

If we are asked to help our clients at the interview stage then we try to find out from the police if an out of court disposal is going to be an option if our client owns up to doing something criminal.  We will then pass that onto our client in the first consultation before interview.  This can be helpful to the police as well as to our clients. It takes the guessing out of deciding what the risk is to owning up to an offence. Our clients want to know if they own up what sort of record or punishment they might end up with. We cannot always secure this information before the interview with absolute certainty, that is up to how the police communicate with us. If we feel we have been promised a certain outcome by police and that outcome does not follow we will make very strong arguments why that promise should be respected. We may even have to give evidence at a trial what we were told by the police about the likely outcome before interview.  This is very rare because it helps the police, us and our clients if we can confidently recognise which investigations might or wont ever result in an out of court disposal early on.

 

Out of court disposal: Caution

This is a matter of formal police record and is either spent as soon as it is issued or 3 months afterwards if the caution was made conditional on taking part in something to “right the wrong”, for example, if a caution was made conditional on compensating for criminal damage done. If a caution is spent then it should not require declaration in an employment application. However, for sensitive jobs or positions that require a DBS check from the police, the caution will show up and it will be up to the individual and the employer to work out if it is relevant to them taking up a position.  A person who comes before the court can expect a caution might be referred to as evidence of past bad character.

 

Out of Court disposal: Restorative justice or local schemes like “pathfinder”.

These outcomes fall short of a formal record like a caution. They wont be referred to in court in the future, they wont show up on DBS checks, unless they are enhanced checks needed for particularly sensitive posts. Participation often involves mediation or restitution, sometimes giving something back to the community. The scheme may require meeting the victim or taking part in a series of meetings or courses run by the police or support organisations.  Failure by the suspect to satisfy the requirements of the scheme might result in the decision how to dispose of the offence being reconsidered and could even result in a summons or charge to court for the offence.

Find out more about DBS filtering here: https://www.gov.uk/government/publications/dbs-filtering-guidance/dbs-filtering-guide

Find out more about policies on out of court disposals here: https://www.cps.gov.uk/legal-guidance/cautioning-and-diversion

Find out more about the devon and cornwall police pathfinder “out of court” disposal: https://www.devon-cornwall.police.uk/advice/pathfinder-reducing-reoffending/

 

Out of court disposal: Conditional and Deferred charges and cautions.

Police can attach conditions  to a decision to charge or caution a suspect and if those conditions are met by that suspect then the charge or caution never takes effect. Devon and Cornwall police preferred out of court disposal is currently a deferred caution or charge so the charge or caution is only formally used if after a set period of time, the conditions are not met or the criminal behaviour has not stopped.  It is worth checking with us whether this is right for you and to review the conditions, but clearly avoiding a charge or caution this way can be a positive outcome for out clients.

https://www.devon-cornwall.police.uk/advice/custody/terms-and-explanations/

 

Arrests and Released under investigation (RUI)

If after interview the police do not have enough evidence in order to make a charging decision then either they can continue to detain the arrested person if the police can claim to still have lawful grounds to do so (your solicitor should be reviewing this for themselves) or the police need to release the suspect either on bail or released under investigation, which we call RUI. RUI means the matter is still being investigated but there are no obligations on the suspect, although if they put themselves out of touch with the police then that might be used as an excuse to arrest and remand to court in the future.  We invite out clients to keep in touch with us and let us liaise with them and the police whilst on RUI.

There are no rules limiting for how long the police can keep a suspect on RUI. Any period of RUI might be ended either by an arrest and further interview or charge of the suspect. Or the period might end with a notice of no further action or with an invitation to re-interview as a voluntary attender. We like to think that if one of us at Trinity Advocates is nominated as the suspect’s solicitor we can encourage any further interviews to be conducted through a voluntary attendance rather than by arrest.

We can also put a limited amount of pressure on the police if an RUI period seems to be dragging on without good reason. We have written to the Police and Crime Commissioner about unjustified RUI periods before now. Trinity Advocates keeps a diary system to regularly contact the investigators about when and how the RUI will be resolved.

If you had no lawyer at the first interview and you want to know whats going on then if you ask Trinity Advocates, we will chase the police and advise you how we believe the investigation is proceeding and what you might expect next. We can then talk about helping if the police require another interview of you or the matter results in an attendance at court.

It is not unknown, especially if police are in the middle of a drugs investigation, for a period of RUI to abruptly be brought to an end in a dawn raid by police. If that is going to secure useful material to the investigation then obviously the police are going to use an unannounced arrest rather than a voluntary attendance arrangement.

If there is a further interview at the end of the RUI period then if we have been instructed already by the suspect then it is expected that we will be invited to help again.  There is only one legal aid fee for each investigation, regardless of how many interviews.  If the lawyer properly does more than 10 hours of work during the investigation, the fee can increase. Otherwise Legal aid does not allow for the payment of any more fees to fund a second opinion unless there is a clear, practical reason for a second firm of lawyers to be asked to assist during the course of an investigation.

 

Bail pending the investigation

RUI has increasingly been used instead of bailing the suspect pending the outcome of police investigations.  Bail is a means of release from the police station or court, creating an obligation on the person to return on a date and time given. If the suspect is bailed then the investigation must be resolved within 28 days unless a senior officer called a superintendent authorises bail for up to 3 months. After 3 months a court has to authorise the extension of bail.  We can make representations each time for our clients about continued bail. Offences on bail, breaches of conditions attached to bail, failing to return to the police station as required by bail, all leave the suspect vulnerable to arrest and a remand by the police to court and then a remand to prison by the court.

As with RUI when a client returns on bail to the police station for interview or charge, we would expect to be asked to help, our continued work being covered by the single legal aid fee claimable by one firm in the course of the police investigation.

If our client is having problems keeping their bail return obligation then we can advise and try to talk to the police about rearranging the attendance.  Trinity Advocates will ask the police before the bail return date what is likely to be required of our client (police may seek a re-interview or to invite an identification procedure) and we will keep our client informed and help them on the attendance if that is justified.

If someone attends the police station without issue on bail or after a period of RUI, and the police charge them with an offence, we would expect the suspect to be given bail until the first court hearing (see “charged and bail to court” above). We would make the strongest of arguments on our client’s behalf if the police considered a remand to court in such a situation.

Contact Us

Trinity Advocates,
92 South Street,
Exeter, Devon, EX1 1EN

01392 927111
defence
@trinityadvocates.co.uk

Trinity Advocates is authorised and regulated by the Solicitors Regulation Authority under number 509976.  Contracted with the Legal Aid Agency.

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