Summary: Helen Sanderson - Getting the Threshold Test Right

30 October 2019 to 30 October 2020

Helen Hanley, PNLD Legal Adviser, provides an overview of Helen Sanderson’s presentation ‘Getting the Threshold Test right’, given at our Criminal Law Conference on Thursday 17th October 2019.

Helen Sanderson, Head of Central Legal Training at the Crown Prosecution Service, delivered a lively, flexible and informative presentation entitled ‘Getting the Threshold Test right’.

Helen began her presentation by asking her audience “Have you ever been to the CPS for a charging decision, got a 20 point action plan and not got the decision you wanted?”  The audience affirmed this.  Helen explained that she would go through the Threshold Test from the perspective of a prosecutor with the aim of giving officers a clearer understanding of what questions prosecutors are likely to ask them when they go for a charging decision, so that officers could go prepared; a case of “to help you help us, to help you again” situation.

A brief introduction to the New Code for Crown Prosecutors

Helen talked to the audience about the new Code for Crown Prosecutors, issued by the Director of Public Prosecutions, which came into effect in October of last year.  She described it as a public facing document, and explained how there are various policies (such as the policies for domestic violence, rape, hate crime) and guidance, but all these documents sit underneath the Code for Crown Prosecutors.  She explained how this Code is an important document, as it sets out the general principles a prosecutor should follow when making decisions on all cases, and she encouraged all officers to read the revised document.

When should prosecutors apply the Full Code Test?

Helen explained how prosecutors must go through the Full Code Test first.  The Full Code Test has two stages:

(i) the evidential stage; followed by
(ii) the public interest stage.

This test should be applied, as per paragraph 4.3:

(a) when all outstanding reasonable lines of inquiry have been pursued; or
(b) prior to the investigation being completed, if the prosecutor is satisfied that any further evidence or material is unlikely to affect the application of the Full Code Test, whether in favour of or against a prosecution.

She explained how 4.3(b) could be used, despite the fact that further enquiries are ongoing, and that only when 4.3(a) and (b) cannot be applied, can a prosecutor consider the Threshold Test.  She then highlighted paragraph 5.1 of the Code, which states:

5.1 In limited circumstances, where the Full Code Test is not met, the Threshold Test may be applied to charge a suspect. The seriousness or circumstances of the case must justify the making of an immediate charging decision, and there must be substantial grounds to object to bail.

She emphasised how this paragraph makes it quite clear that only in limited circumstances, when the Full Code Test is not met, can the prosecutor then move on to consider the Threshold Test.

The Threshold Test

Helen read out paragraph 5.2, which introduces the conditions for the Threshold Test:

5.2 There must be a rigorous examination of the five conditions of the Threshold Test, to ensure that it is only applied when necessary and that cases are not charged prematurely. All five conditions must be met before the Threshold Test can be applied. Where any of the conditions are not met, there is no need to consider any of the other conditions, as the Threshold Test cannot be applied and the suspect cannot be charged.

Helen emphasised the use of the phrase ‘rigorous examination’ in paragraph 5.1, and stated emphatically how she agreed with the strictness of the Threshold Test.  She explained that the test had to be so strict, because:

(i) when Crown Prosecutors apply the Threshold Test, they are potentially going to take away someone’s liberty and put someone in custody, when the police do not yet have enough evidence for a realistic prospect of conviction;
(ii) it aims to cut down the number of cases that are charged prematurely; and
(iii) it reduces the risk of discontinuance.

The Crown Prosecutor must therefore take the Threshold Test seriously and pass the five conditions, so that the case can reach the Full Code Test quickly.   She explained how the Threshold Test was in essence the reaching of a balance between charging and not having an offender at risk to the public.

Helen went on to describe the five conditions of the Threshold Test.  She stressed the importance of the police considering all five of these conditions, before seeking a charging decision, as the prosecutor must meet all five.  If the prosecutor is unable to meet one of the conditions, they cannot move on to consider the next.

The five conditions of the Threshold Test

First condition - There are reasonable grounds to suspect that the person to be charged has committed the offence.

Helen explained that this used to state ‘reasonable suspicion’ in the earlier version of the Code, but now it is ‘reasonable grounds to suspect’.  Although it sounds the same, the reason for the change is to emphasise the objective assessment of the evidence that is available at this stage.  In contrast to the Full Code Test, evidence for the Threshold Test must be capable of being admissible, reliable or credible. The officer must assess the evidence, as the Crown Prosecutor will ask questions such as:

Has the defendant raised anything in interview?

Has the defendant given you any information when you have been investigating?

The officer must be able to answer these questions, as the Crown Prosecutor has to consider this information when they assess the evidence.

When the Crown Prosecutor is satisfied this condition is met, they will move on to the second condition.

Second condition - Further evidence can be obtained to provide a realistic prospect of conviction.

Helen pointed out that this condition can cause friction between the police and the Crown Prosecutor.  She emphasised how ‘further evidence’ means real evidence that is identifiable and accessible in a reasonable time, not speculative evidence. This includes evidence that points to and also away from the prosecution. This is a harder condition for the prosecutor to meet. The prosecutor is likely to ask:

Why is the evidence not available now?

What the timescale is going to be for getting that evidence?

Can the evidence be obtained in the current PACE clock?*

*This would include any applications for extensions of time the officer may make. The reason why the Crown prosecutor asks this question is that they are under an obligation to ask this.   If evidence can be obtained within the PACE clock, then the officer should do this, then come back so the prosecutor can apply the Full Code Test.  If the officer is unable to answer this, then the prosecutor is likely to send them away.

Helen acknowledged that it could be difficult for the police to gauge the timescale, for example, it may take some time for an officer to receive the results of forensic evidence.   However, it is important that the prosecutor is able to get to the Full Code Test as soon as possible.  They are not working to the custody time limit.  Once an officer gets a charging decision, if any evidence comes in that substantiates the charging decision or negates it, they must inform CPS immediately.  Again, this is important, as this could affect the person being released.

Helen went through some examples, asking ‘Could the Threshold Test be applied with this condition?’

Example 1 -

Details of investigation: A person identifies the suspect but this person is motivated to lie.  The suspect has provided a plausible alibi.  The police have not checked this alibi.  The police are waiting on fingerprints and DNA evidence.

Answer: No. There are no reasonable grounds to suspect the suspect has committed the offence as the police haven’t checked the alibi yet.  The prosecutor would ask the police to go away and check the alibi, and also to get DNA evidence.

Example 2 -

Details of investigation: There is evidence to identify the suspect as the perpetrator of the offence, e.g. partial ID, possession of similar clothing to that which the witness has described.

Answer: Yes. The prosecutor may have reasonable grounds to suspect that the DNA evidence will point to the suspect.  This condition could be met, as the evidence could be capable of providing a realistic prospect of conviction.

Once this condition is met, the prosecutor may move on to consider the next condition.

Third condition - The seriousness or the circumstances of the case justifies the making of an immediate charging decision.

This doesn’t mean a risk of breaching bail, absconding, or failing to surrender.  These wouldn’t meet the criteria. The officer needs to be able to justify the risk, if that person is granted bail rather than charged.  Evidence would include a risk assessment, such as a domestic abuse checklist.

Once this condition is met, the prosecutor can move on to considering condition 4.

Fourth condition - There are continuing substantial grounds to object to bail in accordance with the Bail Act 1976, and in all the circumstances of the case, it is proper to do so.

There needs to be a proper risk assessment.  The grounds cannot simply be unjustified or unsupported assertions; there must be real risk if the person is released on bail.

Where this condition is met, the Crown Prosecutor can move on to the next condition.

Fifth condition - It is in the public interest to charge the suspect?

The prosecutor assesses this, in line with the Code:

4.4 In most cases prosecutors should only consider whether a prosecution is in the public interest after considering whether there is sufficient evidence to prosecute. However, there will be cases where it is clear, prior to reviewing all the evidence, that the public interest does not require a prosecution. In these instances, prosecutors may decide that the case should not proceed further.

Once the prosecutor is satisfied that all five conditions have been met, the case passes the Threshold Test and the decision to charge is taken.

Discussion of cases that have or haven’t passed the Threshold Test

Helen addressed the audience with the question ‘has anyone actually had a Threshold Test charging decision?’  Initially one delegate answered that they had, in relation to a serious case.

A second delegate raised an issue that he’d had a PWITS case, but failed to get a Threshold Test charging decision, even though he had caught the suspect red handed with the drugs with surveillance.  Helen responded by acknowledging that PWITS cases can be difficult, as surveillance and CHIS information is intelligence and cannot be put into an evidential format.  She advised that in such cases, where the officers have mobile phones and details of conversations to support the case, they carry out a level 1 download, as this download can be produced in an evidential format.

Helen explained how the Threshold Test can be applied in big drugs cases, where the drugs have been seized, but still need to be tested. At this stage, there is reasonable suspicion that the tests are going to come back positive.  In planned drugs operations, Helen suggested the police work with CPS.  Another delegate described his experience of how well this can work if the police and the prosecutor work through the test together.

Review of the Threshold Test

Helen emphasised that once the Threshold Test has been met and the suspect is charged, the prosecutor’s work does not stop, as per paragraph 5.11:

5.11 A decision to charge under the Threshold Test must be kept under review. The prosecutor should be proactive to secure from the police the identified outstanding evidence or other material in accordance with an agreed timetable. The evidence must be regularly assessed to ensure that the charge is still appropriate and that continued objection to bail is justified. The Full Code Test must be applied as soon as the anticipated further evidence or material is received and, in any event, in Crown Court cases, usually before the formal service of the prosecution case.

This paragraph puts the prosecutor under a duty to review the case.  They must get the case to the Full Code Test before it goes to trial.  Prosecutors will chase officers for the promised extra evidence.  This chasing has nothing to do with the custody time limit.  The police would be wrong to think that they have the full custody time limit to get the evidence to the prosecutor for the trial.  They need to provide the evidence within a reasonable time limit as the prosecutor must comply with the Code for Crown Prosecutors.

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Thursday 15th October 2020


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