The most important stage of a criminal case can come before any charge is made. Andy Rootsey explains how acting early secured no further action for a senior professional accused of sexual assault.
Our client held a senior professional role and faced an allegation that threatened everything he had built over two decades. Here, Andy Rootsey explains how the pre-charge engagement protocols were used to bring the investigation to a close, quickly, without a charge and without a day in court.
One moment, our client, a respected professional was travelling on a long flight, thinking about the working day ahead. The next, he found himself under arrest, facing an allegation of sexual assault from a stranger, with his career, his reputation and his family’s future suddenly in doubt.
He had held senior and trusted roles for many years without a single complaint. He had been vetted repeatedly and was highly regarded by his colleagues. None of that prevented an allegation being made, or the investigation that followed.
The problem with waiting
Many people under investigation believe that the truth will come out if they are patient. Sometimes it does. But investigations can take months, charging decisions can take longer, and a case sent to the Crown Court may not reach trial for well over a year.
For this client, the charge itself would have done the damage, whatever the verdict. His professional position, his family’s life and his ability to carry on the work he had dedicated himself to would all have been at risk from the day he was charged. An acquittal years later would not have undone that.
“People often assume that the only place to answer an allegation is in the courtroom,” says Andy. “In the right case, that simply isn’t so. The law gives the defence a real opportunity to influence the charging decision, and the earlier we act, the more we can protect.”
What the law says about pre-charge engagement
Pre-charge engagement is governed by Annex B of the Attorney General’s Guidelines on Disclosure (2024). It is also recognised in the Director of Public Prosecutions’ Guidance on Charging and in the Code for Crown Prosecutors. It describes voluntary discussions between the defence and the investigator or prosecutor after the first interview and before any decision to charge. Either side can start them, and no suspect is obliged to take part.
The Guidelines identify several things it can achieve:
• The defence can point investigators to reasonable lines of inquiry they might otherwise miss.
• The issues in dispute can be narrowed.
• A suspect can respond to evidence gathered after interview.
• A case that would otherwise be charged and later abandoned can be stopped at the outset.
This matters because investigators are already under a legal duty, in paragraph 3.5 of the Code of Practice issued under the Criminal Procedure and Investigations Act 1996, to pursue all reasonable lines of inquiry, whether they point towards or away from a suspect. Under pressure of time and resources, the lines pointing away are the ones most at risk of being overlooked. Pre-charge engagement gives the defence a formal way to put them in front of the people making the decision.
The Code for Crown Prosecutors expressly allows a suspect, or those acting for them, to put evidence and information before the prosecutor to help inform the charging decision. In cases of serious sexual offences, the Crown Prosecution Service’s own guidance encourages prosecutors to consider engaging with the defence before charge.
A decision that needs careful judgement
Pre-charge engagement is not risk-free, and it is not right for every case. Discussions are recorded. Anything the defence provides may be used as evidence and may prompt further inquiries. The Guidelines are clear that engagement is not a substitute for an interview under caution, so a new substantive account may lead to a further interview. What to put forward, when, and in what form are strategic decisions that call for experienced advice.
In this case the balance was clear, the client had answered every question and gave a full, consistent account denying the allegation. With a complete account on record and the real issues already narrowed, there was little to lose and a great deal to gain by acting early.
Putting the protocols to work
Within weeks of the arrest, the Crown Prosecution Service had received:
• Comprehensive and detailed written representations drafted by Andy, addressing each stage of the Full Code Test.
• A complete, annotated transcript of the interview;
• A substantial bundle of character evidence that Andy had gathered from people who had known the client for many years and in more than one country;
• Independent professional evidence of the effect the investigation was having on the client;
The aim was simple: the charging decision should be taken on a complete file, not an incomplete one.
Taking the case apart, element by element
The representations went through the offence one element at a time. Much of the background was agreed. The case turned on whether any contact had been intentional and whether it was sexual.
On intention, the prosecution case rested essentially on one thing: the complainant’s impression of how firm a touch had felt. She had not seen the touch and had been emerging from sleep at the time. Her own account recorded that she had first thought some of the contact earlier on the flight was accidental. Her honesty was never challenged. The point was that the prosecution’s own evidence was consistent with an innocent explanation.
Character was the second pillar, and it was argued as a matter of law rather than sentiment. The client was of positive good character in the fullest legal sense, so any trial judge would have been required to direct a jury that his character supported his credibility and made it less likely that he acted as alleged. The Code asks whether a “properly directed” jury is more likely than not to convict, and Andy set out why that direction had to form part of the prosecutor’s assessment in respect of the evidential test. The character evidence itself was exceptional. It did not simply praise the client; it gave specific, independently corroborated accounts of how he had behaved over many years.
In the alternative, the representations addressed each public interest factor in the Code. They also asked for a prompt decision, as the CPS guidance itself requires once it is clear a case will not meet the test, in the interests of the complainant as much as the client.
The outcome
After considering the representations, the matter concluded with no further action. No charges were brought, and the client was able to return to his professional life.
“Every case is different, and pre-charge engagement is not the right course for everyone,” says Andy. “It needs careful judgement about what to put forward and when. But where the evidence does not support a prosecution, taking the initiative can spare a client, and the complainant, many months of uncertainty and a trial that should never take place.”
At the conclusion of the investigation our client said “Hiring Andy was one of the best decisions I have ever made, and in a very real sense, a life-saving one. He poured extraordinary thought and effort into preparing my representations, and the written product was superb. He was compassionate about my situation and honest about every aspect of the process. I always felt I could communicate with him openly and count on him completely. He is exactly the person you want in your corner”.
Under investigation? Act early
If you or someone close to you is being investigated by the police or another agency, the period before charge can be decisive. Murray Hughman’s criminal defence team can advise on whether pre-charge engagement is right for your case and, where it is, build and present the evidence that investigators and prosecutors may otherwise never see.
Contact Murray Hughman in confidence on 020 7701 8653 or at info@murrayhughman.co.uk.
