This article is relevant to investigations by both the military and the civilian police.
If you have been interviewed by the police you will not always have been given a decision about your case straight away. There are a number of possible outcomes, which we set out in our article about speaking to the Police. If you have not been charged, cautioned or released “No Further Action”, then it is a waiting game.
When you get out of the police station it is very very tempting to just crack on with work and everyday life and try not to think about what may happen. Unfortunately, you cannot afford to do that, however much you want to. As ever the rule is “hope for the best but prepare for the worst” and this period is a critical period to prepare for what may be ahead.
What do I need to do?
You need to deal with the following five issues:
1. Assistance
2. Representation
3. Engagement
4. Witnesses
5. Evidence
If you deal with these five issues then if you are charged you will have already assembled the team who will support you, you will know something of what you are facing and you will have ammunition to hit back. Also, you may create the opportunity for a pre-emptive strike to prevent you being charged.
Assistance
You are going to need a good assisting officer (an “AO”). If you are facing the potential of a hearing in front of your CO, a court martial or a trial in the Magistrates’ or Crown Court then you are entitled to the assistance of an assisting officer. You may nominate an officer, warrant officer or senior non-commissioned officer of your choice to assist you. If they are not available, the CO will provide you will a list of at least two candidates you can choose from.
You need to pick someone who knows you well, is sympathetic and is senior enough and experienced enough to get things done, even when it is inconvenient for your unit. If you have already sought representation from a firm of solicitors who specialise in Military Law, then ask them for some tips on what kind of person to choose for your particular case.
You also need to identify a friend or family member you can talk to in complete confidence. This is a worrying and lonely process, do not try and go it alone, find someone to speak to from day one.
Representation
Hopefully, if you read our article on Speaking to the Police you will have had legal representation at interview. If you had notice of your interview you will hopefully have found a military specialist. If you didn’t have representation then you need to get some now, not when you’re charged. If you did have representation then you are not bound to continue to use them, shop around, see who specialises in military criminal law, find out what your legal aid contributions are likely to be. Sometimes it is better, financially to opt for private representation.
You cannot apply for Legal Aid until you are charged and to make sure you are prepared you will want your lawyer to start working now, even if you then apply for Legal Aid later, so look at your finances and see what you can afford. No one wants to pay lawyers (not even other lawyers) but remember, your liberty and career are at stake. If things go wrong in court, you may have a lot of time to regret some decisions that seemed sensible at the time. We all know what prior planning prevents…
Engagement
Before your interview you should have received some ‘disclosure’, information about what you are suspected of and an idea of what evidence the police have. No doubt the police will have revealed more in your interview and now you will have a good idea of what the police may have that supports the case against you. However, what you also really want to know is what they have that assists you or undermines their case. Obtaining this requires pre-charge engagement. Effective pre-charge engagement is rather like defusing a bomb: technical and high risk. It is not something you should try yourself. Some solicitors have specialised in this for years and often with very good results. However, recently legal aid has become available for about 5 hours of pre-charge engagement. That may sound like a lot but in all but the simplest cases it is only enough to begin the process. Unfortunately, you will have to pay privately for anything else. Although it is usually money well spent as it can mean you do not get charged (with all the worry and career drag that entails), at the minimum it ensures you have better information about what you’re going into.
Witnesses
Good pre-charge engagement will make this issue much easier to deal with. The police will have spoken to some witnesses and hopefully you will have a good idea who and what they have said. However, you are allowed to identify your own witnesses who can support your case. If you are being investigated for assault but in fact immediately before the incident you were attacked and you were acting in self-defence you need try and identify witnesses who saw that and can support your account. You then need to get a witness statement from them or at least a brief summary of what they away. This is something your AO or lawyer can help with. They may also be able to help you identify the people in the first place. You are also allowed to approach police witnesses for a further statement if you think they have missed out something important. However, you must be extremely careful as doing so may put you in breach of bail or under suspicion of attempting to pervert the course of justice. You should always take legal advice first and then ask your lawyer or AO to contact them for you. This is not something to do yourself.
Evidence
Just like witnesses, the police will have their evidence e.g. CCTV footage or mobile phone data and it is important that you secure your evidence quickly. CCTV is usually deleted within 28 days. Some vital mobile phone data is only kept for 12 months. Bank Statements only go back 7 years. We have recently had a case where vital phone evidence was not requested in time and was deleted and the handset, which had some data on it, ended up in a swimming pool a few months after interview. The evidence is gone, and the Defendant has to suffer the consequences.
Independent lawyers have access to specialist experts and can commission work to be done at any stage of a case, including pre-charge if that work is potentially going to show that you are innocent and stop you being prosecuted at all.
You need to work with your AO and your lawyer to identify what evidence is available and secure it in case you are charged. Sometimes years can pass before you are charged, especially if you are being investigated by the Service Police, by then the evidence that would have supported your case may be gone forever. You can get an expert to create a digital copy of your phone but sometimes it’s as simple as taking lots of screen shots, downloading your bank statement and asking your phone provider for your detailed billing information. Once you have the material make digital copies and store them in a cloud.
Taking the “fight” to the police
Sometimes, the efforts of your team will throw up new evidence that demonstrates you have not committed the offence you are suspected of or undermines the case against you to the point where the prosecution may be persuaded not to charge you. This is done by providing the police with the evidence along with written representations explaining why the evidence means you should not be charged. This is part of Pre-Charge Engagement and is not something that should be tried at home, you should not even consider doing this without getting advice from a lawyer. It is a time consuming and technical job that requires applying something called the “Full Code Test” to the evidence in your case. However, it can produce excellent results. We recently had a case involving a senior officer alleged to have negligently performed a duty, he was suspended, and conviction would have effectively ended his career. Carefully written representations to the Director of Service Prosecutions meant he was not charged and formed the basis of representations in Major Administrative Action leading to the decision that the Service Test was not breached.
If there is the opportunity to make representations and prevent you being charged then you can short-circuit a process that can take years, and save you and your family lots of worry and financial harm as your career stalls. Don’t let the opportunity pass.
Three Top Tips
The three most important things to remember if you are awaiting a charging decision are:
1. ASSUME THE WORST: It might all work out on its own, but it may well not. Your future is in your hands now and hard work now means if the worst happens things will be easier for you. It’s the legal equivalent of train hard, fight easy.
2. GET HELP: You can feel very alone and won’t want to publicise your predicament. You will feel better and have a better chance coming through unscathed if you have a good team around you. Get that team in place as soon as possible.
3. START AT ONCE: It can take time to find the right lawyer, track down evidence and prepare. You don’t know how soon the police will make their decision. You don’t just want to be ready for them, you want to be the one on the front foot.
This article is commentary and not legal advice. If you have a query relating to a case (or anything else) and require independent advice, you ought to speak to a specialist solicitor or public access barrister.
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