Pre-Charge Lack of Engagement

Since the mid-1990s there has been an implicit shift in the way the criminal justice system functions in England and Wales. It has been argued that fundamental adversarial safeguards have been weakened and a drive for a more "efficient" justice system has become the priority. The advent of the Criminal Procedure Rules (CrimPR) in 2005 (and their subsequent amendments) codified and explicitly laid out this priority. The drive for a more efficient criminal justice system (CJS) focusses on processing and completing cases as quickly as possible and a number of different mechanisms have been employed to achieve this goal. These mechanisms permit criminal cases to go through the system as quickly as possible, much akin to Herbert Packer’s "conveyor belt" in his Crime Control Model. The latest mechanism created to enhance the efficiency drivers of the CJS is Pre-Charge Engagement (PCE). This was introduced by the revised Attorney General’s Guidelines on Disclosure in December 2020. The advent of PCE followed a review of disclosure in the criminal justice system initiated by the then Attorney General in 2018, which was, in large part, prompted by a number of cases that collapsed owing to disclosure failings. The Attorney General’s Review of the Efficiency and *Crim. L.R. 738 Effectiveness of Disclosure in the Criminal Justice System in 2018 stated that "there must be a new emphasis on compliance with the duty of disclosure much earlier in the process than is currently the practice". In the Guidelines, PCE is described as "voluntary engagement between the parties to an investigation after the first PACE interview, and before any suspect has been formally charged". To engage with the process, a defence solicitor (or an unrepresented suspect) and the police have to agree that PCE is in the interests of progressing the case and it is envisaged it will only be used in 1–3% of cases. If the offer is rejected, and the suspect is eventually charged, the Guidelines explicitly provide that the defendant’s failure to engage should not be held against him later in proceedings. At face value, it might appear that engaging in PCE might be a risk-free option for the suspect, as there can be no future penalty given to them if they reject the offer to engage. This article seeks to ascertain the level of understanding and the levels of frequency where PCE is employed, the potential risks involved and what implications the scheme holds for adversarial criminal justice in England and Wales. Empirical research was carried out between August and December 2021, which was funded by The Research Activities Fund of the Society of Legal Scholars. The field work consisted of an online survey and attracted 40 participants. Thirty-three of the participants were criminal defence solicitors and seven were Accredited Police Station Representatives. At the time the survey was launched, PCE had been in place for eight months.