Can I challenge a criminal case during the investigation stage?

18th November 2019 Criminal Defence

Let’s say you are either arrested or you voluntarily attend an interview under caution with the police, HMRC or any other public investigator. Can you challenge the investigation before you are interviewed again or before a charging decision is made? The answer is – Yes.

In most complex cases, the prosecutor will not make a decision to charge or discontinue immediately after a first interview. They normally tell you that they will be in touch once they have made additional enquiries. You may be released without any conditions or you may be given a date on which to re-attend. Alternatively, some investigations will result in a decision that bail is required, with or without conditions to re-attend on a specific date. Conditions can include signing at the police station at regular intervals, surrendering a passport or agreeing to live at a particular address. It might also involve a condition not to directly or indirectly contact particular individuals.

Following the interview, months and sometimes years can pass before the conclusion of a complex investigation. Clients often have to put their lives on hold pending a decision to charge or discontinue the case. Company directors, professionals and others with a lot at stake can lose a great deal whilst they wait for the final decision, both in terms of their income and reputation.

I am often asked –

How long can you be under investigation by the police or

How long can you be on bail without being charged and

Why do the police keep extending my bail and how many times can bail be extended?

I will talk about challenging bail and bail conditions in another article, but the basic position is this – If you are ‘released under investigation’, you are not subject to bail and the officers can take as long as they need. However, they cannot take as long as they ‘want’ without conducting the investigation expeditiously and lengthy periods under investigation can – in limited circumstances – amount to an actionable breach of human rights. If you have been released on bail, the initial time limit is 28 days, although a Superintendent can authorise an extension up to the 3 month point. Each three or six-month extension thereafter must be agreed by the Magistrates Court.

What options do you have during that period?

1. Wait it out.

You can wait for the officers to conclude their investigation and you can choose not to provide them with any comment beyond those you made during interview. This is certainly the cheapest option in the short term, but carries the greatest risk of the investigating officers coming to their own incorrect conclusions regarding your part in the allegations. However, I sometimes advise clients that this is the best option. It very much depends upon the apparent strength of the prosecution case, whether comprehensive answers were given during interview and the likely nature of the investigator’s enquiries following interview.

2. Offer a second interview.

Suspects will often be interviewed on two or more occasions during a complex investigation and the interviews may be months apart. If you are not expecting to be invited for a second interview, there are circumstances in which you can offer to attend, particularly if you want the officer to consider important information in support of your defence. There are advantages and disadvantages to making yourself available for further questioning and those factors have to be carefully considered before an offer to re-attend is made.

3. Litigate the issues.

In most of the cases I deal with, clients are invited for interview and the officers supply me with documents in advance so that I may take instructions and advise on whether questions should be answered. In a lot of those cases, the “pre-interview disclosure” can amount to many hundreds of pages and I may take instructions over a series of appointments. This can result in a decision to –

(i) Make no comment,

(ii) Submit a written statement (in place of answering questions),

(iii) Answer all of the questions in detail or

(iv) Submit a summary statement and answer questions arising. 

Whichever option is chosen, the first interview in a complex case can feel more like a fact-finding exercise, rather than an opportunity for the officers to put specific allegations.

This means that when the first interview has finished, the client will usually have a reasonable understanding of what the officers want. This gives us an opportunity to expand upon answers given during interview and supply additional documents between the first and (if applicable) second interviews. If this is done properly, litigating the points in correspondence between interviews can be a highly effective way in which to challenge the investigator’s case. There are, of course, circumstances in which clients should not provide additional information. However, I have stopped many cases at the investigation stage by using this method when the officers were confident that my client would be charged with criminal offences.

Many lawyers do not advise their clients of these options following the first interview. It often has a lot to do with funding restrictions, but even where insurance or litigation funding is available, too many lawyers feel nervous about challenging a case between interviews because they are simply not equipped to do so. It might involve advice from colleagues in the employment, corporate or litigation departments (amongst others) and some firms may not have these departments. Even if the option is not taken, it should be properly considered; not simply as a parting comment following the first interview but by planning what the challenge might be.

This does two things – If the option is pursued, the client knows that the case is being actively challenged. If the option is not pursued, the client knows that it has been given due consideration and this has a long term positive psychological impact. If a client waits months between interviews on bail and hears nothing from their lawyers, it simply adds to the tremendous stress and erodes confidence in any future advice they receive.

How much is the stress worth? Applying some funding to a proper consideration of all three options can greatly reduce the psychological burden in long investigations. It can stop the investigation, greatly reduce the size of a prosecution, turn a suspect into a prosecution witness or remove a suspect from an investigation altogether. It can also reduce the commercial and financial impact of being under investigation for a long period.

Please get in touch if you need advice on the point.

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Evan Wright is a Partner located in Manchester in our Business Crime & Regulation department

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