Guidance on file submissions for Full Code Test charging decisions in rape and serious sexual offences (RASSO) cases

The Director’s Guidance on Charging (6th Edition) (DG6) prescribes the material and information required for a charging decision in all case types. DG6 also sets out the arrangements for charging decisions and the joint working framework for police officers and prosecutors during the investigation and prosecution of criminal cases including e.g. the escalation process and arrangements for Early Advice. Police officers and prosecutors must comply with DG6.

This guidance should be read in conjunction with DG6. It is intended to support consistency in approach to the application of the DG6 requirements in the context of RASSO cases.

The guidance is divided into two parts:

1. PART ONE: Material required for a Full Code Test charging decision in a RASSO case
2. PART TWO: Information required for a Full Code Test charging decision in a RASSO case

For requirements in relation to submissions for charging decisions under the Threshold Test please refer to the Code for Crown Prosecutors and Part 6 DG6.

Contents

• Part One: Material required for a Full Code Test charging decision in RASSO cases
  • Key evidential material
  • Material related to disclosure
• Part Two: Information required for a Full Code Test charging decision in RASSO cases

Part One: Material required for a Full Code Test charging decision in RASSO cases

Purpose

Part One provides additional guidance to support investigators and prosecutors identify the material required in RASSO cases where a Full Code Test charging decision is sought.

Please refer to DG6 Annex 3 and Annex 5 for detailed requirements

Material required

The request for a charging decision should include:

• Key evidential material; and
• Material relating to disclosure.

1. KEY EVIDENTIAL MATERIAL

This is evidence which is relied on to establish the elements of the offence to be proved, including the identity of the offender and any relevant state of mind (e.g. the suspect’s reasonable belief in consent), together with any other evidence that can further strengthen the case by contradicting or otherwise undermining any explanation raised by the suspect in interview. These include:

a) Key statements

Examples of key statements in RASSO cases:

• The complainants’ section 9 statement or video recorded interview 
• All civilian witnesses whose evidence may have a bearing on the case to be proved (examples include first disclosure witness(es), witnesses as to the complainant’s intoxication in a ‘capacity’ case)¹
• Police officers who have had contact with the complainant soon after the incident, witnessed any aspect of the offence or have recorded a suspects’ significant statement;
• Expert witnesses where a statement is required to address a specific issue in the case for example covering the mental capacity of the complainant or suspect or physical or psychological injuries resulting from the alleged offence. Where there is Medical Evidence of injuries to the body provide photographs of the injury, FME statements and notes and hospital records;
• Statements from the complainant and other witnesses which will potentially support additional charges in a domestic abuse related RASSO case for example coercive and controlling behaviour or previous acts of violence within the relationship
• Where there is identification evidence provide witness viewing logs, a witness identification statement and any other evidence supporting the identification.

b) Key exhibits 

Examples of key exhibits in RASSO cases:

• Audio visual material such as body-worn footage, CCTV footage, photographs and 999 calls where it has evidential value: The officer who has viewed the CCTV or body-worn footage should provide a clear description and analysis of what is taking place including identifying the parties and relevance to issues in case (e.g. highlighting distress, intoxication, consistency/inconsistency of accounts). The relevant part of the footage must be clearly identified with counter times. 
• Streamline forensic reports where appropriate: In any case in which material evidence against a suspect involves any such type of forensic evidence, a stage 1 SFR will suffice for that aspect of the case for the purposes of making a charging decision and for the first hearing in the magistrates’ court e.g. DNA evidence supporting the contention that sexual activity took place between the complainant and suspect. A full evidential statement detailing the analysis will only be required if the case proceeds to trial and aspects of the SFR are challenged by the defence, or if the issues are complex and an SFR is inappropriate.
• Exhibits capturing key exchanges recorded on digital devices such as mobile phones or laptops which support the case (e.g. evidence of a key disclosure made by the complainant or an admission/apology by the suspect to the complainant): Phone evidence and text messages need to be in a clearly understandable format. They must clearly identify which messages / calls are from the suspect and which from the victim messages - and be presented in a chronological format, with no messages edited out from the relevant section, so that the context of the messages can be fully understood.
• Extract(s) from a medical or counselling record where the complainant has made a significant early relevant disclosure. 
• Please include the relevant extracts from any relevant diaries of letters.

c) Interview record

This should provide a detailed summary of key points including as appropriate to the circumstances of the case:

• How the suspect says the incident happened
• Any comments made on consent - particularly in relation to challenges by the interviewing officer regarding what the suspect did to ascertain whether the complainant was consenting
• Any points of disagreement with the complainant’s account
• Anything that undermines the suspect’s credibility
• Anything that amounts to an admission of guilt. Where there are admissions sufficient detail is required in order to establish the extent to which the suspect accepts the offending as outlined by the complainant.
• Any counter allegations made against the complainant that need to be explored
• Any significant comments in relation to social media / texts / phones calls / comments to other people / previous complaints
• Anything that might highlight need for further enquiries in relation to third party unused material
• Any potential defence including any information obtained from the suspect that will impact upon the question of whether and, if so how, digital and/or third party material will be investigated.

d) PNC print of suspect (including any out of court disposals and any relevant foreign conviction orders)

When considering bad character evidence it is also important to look beyond convictions and out of court disposals and examine the potential relevance of other allegations of criminality that have been made against the same suspect e.g. previous allegations that didn’t result in charge, previous discontinuances or acquittals and outstanding investigations involving which will assist with building a suspect profile.

See DG6 Annex 7 Part 2, Paragraph 15 for more guidance around ‘information and relevant material’ that should be provided in order to support a bad character application. 

e) Victim personal statement

Where it is available. See here for joint agency guidance.

f) In domestic abuse related RASSO cases: A Domestic Abuse check list and Domestic Abuse, Stalking and Harassment (DASH) form when used

2. Material related to Disclosure

Where a Not Guilty Plea is anticipated the following items are required:

a) Schedules of unused material

See Attorney General’s Guidelines on Disclosure 2020. 

b) Copies of relevant potentially disclosable material and the rationale for reaching that conclusion

There is no automatic requirement to review digital or third party material as part of an investigation and any review of such material must represent a reasonable line of inquiry in the context of the particular circumstances of the case.

Where potentially disclosable material has been identified only relevant extracts from that material should be supplied rather than the entirety of the material (for example if material is found following a review of medical records belonging to a key prosecution witness which is indicative of dishonesty it is only necessary to supply the relevant extract rather than the entire record).

Rationale for decisions should be clearly recorded within the unused schedules provided. 

c) Copies of material presumed to be disclosable² and an explanation of whether, or not, it is considered to satisfy the test for prosecution disclosure, and in either case an explanation for the reasons for reaching that conclusion

Items presumed to be disclosable are as follows:

• records which are derived from tapes or recordings of telephone messages (for example 999 calls) containing descriptions of an alleged offence or offender;
• any incident logs relating to the allegation;
• contemporaneous records of the incident, such as:
  • crime reports and crime report forms;
  • an investigation log;
  • any record or note made by an investigator (including police notebook entries and other handwritten notes) on which they later make a statement or which relates to contact with suspects, victims or witnesses;
  • an account of an incident or information relevant to an incident noted by an investigator in manuscript or electronically;
  • records of actions carried out by officers (such as house-to-house interviews, CCTV or forensic enquiries) noted by a police officer in manuscript or electronically;
  • CCTV footage, or other imagery, of the incident in action;
  • Automatic number-plate recognition (ANPR)
• the defendant’s custody record or voluntary attendance record together with arrest photograph;
• any previous accounts made by a complainant or by any other witnesses;
• interview records (written records, or audio or video tapes, of interviews with actual or potential witnesses or suspects);
• any material casting doubt on the reliability of a witness e.g. relevant previous convictions and relevant cautions of the complainant and material relating to a previous complaint made by the same complainant that was not progressed by the police for reasons which could be relevant to the reliability of the complainant’s allegation. 

PART TWO: Information required for a Full Code Test charging decision in a RASSO case

Purpose 

Part Two provides additional guidance to investigators and prosecutors to support them to identify the information required for a Full Code Test charging decision in RASSO cases.

Please refer to DG6 Annex 4 and Annex 5 for detailed requirements

3. Information required

a) Information about the suspect

• Name
• Date of birth³
• Gender
• Ethnicity and nationality
• The main language spoken and any relevant dialect, if an interpreter is required
• Any indication that the suspect(s) has a mental health issue that may impact on the decision making or handling of the case⁴
• In respect of each, the date and time of their arrest
• In respect of each, their status: custody, bail, or otherwise
• The information in support of any remand application
• Any current or pending proceedings
• Any previous similar offending relevant to proof of the offence
• Any orders to be sought on conviction⁵

b) Information about the offence

• Case type: state whether it is considered Domestic Abuse or Hate Crime (e.g. Racist incident / Disability Hate Crime / Homophobic / Transphobic etc.)
• The proposed charge(s)
• Statutory Time Limits for any of the proposed charges
• Consents relevant to any proposed charges e.g. A-G's Consent; DPP's Consent
• Factual Summary
• The identified or likely issues in the case
• The current understanding of the defence case, including any explanation offered by the suspect, whether in formal interview, defence statement or otherwise⁶
• If the suspect was interviewed, details of the questions asked relevant to the points to prove and identified issues in the case (e.g reasonable belief in consent), including the suspects’ response (including no comment)⁷
• If the suspect was not interviewed, details of the reasons for that decision
• An analysis of the strengths and weaknesses of the case
• The anticipated plea and the rationale for that view.

c) Information about the investigation

Please note that information relating to the identification and execution of reasonable lines of enquiry should be documented in the Investigation Management Document (IMD) or force equivalent.

The reasonable lines of inquiry already conducted and the results of those inquiries
The lines of inquiry which will not be pursued and the rationale for that decision
Any reasonable lines of inquiry which remain outstanding, together with an objective assessment of the likely impact of those inquiries on the decision to charge, taking into account the facts of the case, the available material and information and the known issues
The current status of the PACE clock and its impact on the investigation
An explanation for any delay between the offence date, commencement of the investigation and the referral to the CPS
The status of any linked offenders:-
pending arrest/interview;
charged, and if so, their status, including court dates;
dealt with by Out of Court Disposal;
subject to no action; and
any account or explanation relevant to the suspect’s conduct.
The status of any linked investigation;
Whether any sources of information require protecting;
Details of any action taken and timetable set in relation to asset recovery; their financial strategy and contact details for the relevant Financial Investigation Unit.

d) Information covering the approach to the examination of material

Please note that information relating to the identification and execution of reasonable lines of enquiry should be documented in the Investigation Management Document (IMD) or force equivalent.

The following types of evidential material have been or may be subject to examination during the investigation:

• Mobile communication devices;
• Social media accounts;
• Audio/visual evidence;
• Third party material

Where this is the case the following information is required:

• The purpose of any examination and its potential impact;
• Why examination of the device, account, or material is deemed reasonable; (For assistance see: guidance on reasonable lines of enquiry and communications evidence and para 3.2 Joint Protocol on Third Party Material) 
• Whether any relevant consent has been obtained; (For digital material investigators should use interim digital processing notices. For third party material see paragraphs 4.1-4.5 Joint Protocol on Third Party Material)
• The examination strategy which will include parameters of examination of CCTV, ANPR (geographical and time) and use of cell site
• Where appropriate, the extent of any download or copying, including key word setting or date/time parameters
• If the device or material was returned without examination, or the account not further examined, why this was appropriate; and
• whether the suspect or their representative have been asked for / provided key word searches.

e) Information covering outstanding evidence 

Where evidence or any other witness statements or exhibits are outstanding, the following information is required:

• the nature of the outstanding material 
• any target date by which it will be available
• any issues that may affect its availability within that timeframe or at all.

f) Information covering victims and witnesses

• The victim’s age. Note this is essential information with respect to the availability of many RASSO offences.
• Whether any victim or witness has failed to engage with or support the investigation and 
• has refused to provide a statement;
• will not support a prosecution;
• may not attend court for other reasons; and 
• if so, their relevance to the case.
• Where there is a repeat victim⁸, a summary of the circumstances of any previous incidents;
• Where any victim or witness is vulnerable or intimidated,
• the basis of eligibility for special measure; and
• a special measures assessment, including any meeting requirement:⁹
  • Complainants in sexual offences are defined by Section 17(4) YJCEA 1999 as automatically falling into the ‘vulnerable’ category unless they wish to opt out but it is essential that a discussion takes place with a complainant around the specific measures or package of measures which will provide them with most assistance in giving evidence. Clearance of the public gallery (Section 25(4)(a) YJCEA 1999) is a measure that is specifically available to witnesses in sexual offences cases and should be highlighted during discussions along with the range of other available measures.
  • In accordance with Section 16 YJCEA 1999 all child witnesses (aged under 18) are considered ‘vulnerable’ along with witnesses who suffer from a mental disorder, witnesses who have a significant impairment of intelligence and social functioning; or witnesses who have a physical disability or are suffering from a physical disorder. The Advocate’s Gateway provides practical guidance on identifying the assistance required by vulnerable witnesses including a range of toolkits providing good practice guidance. See also the Psychological Evidence Toolkit.
  • If a vulnerable witness will require assistance to communicate at court it is important that consideration is given to the use of a registered intermediary.
  • Section 28 YJCEA 1999 (pre-recorded cross examination) is currently available for vulnerable or intimidated witnesses. See Joint National Protocol on Section 28.
• Other supporting and/or protective measures proposed for any victims or witnesses who are not eligible for special measures
• Whether the Young Witness Protocol applies on the basis that the complainant or other witness was under 10 at the time the incident was reported If the Protocol applies there will be an expectation that the case is expedited. 
• Where the main language spoken is other than English,
  • any interpretation requirement; 
  • any relevant dialect
• Whether a Victim Personal Statement (VPS/ISB/CIS) has been offered and:-
  • has been taken or is yet to be taken;
  • is to be read out;
  • is to be read out by the victim;
  • has been declined by the victim.
• Has an intermediary been instructed? If so provide report.

g) Information about other considerations 

• Any matters of local or public interest
• Any other confidential information
• Any views of the investigating officer
• Any other issues on which the decision of the prosecutor is sought.

h) Information about the Full Code Test 

• The reasons why both the evidential and public interest stages of the Full Code Test are met
• Additional information is required by the prosecutor to assist with the public interest decision when considering a RASSO offence involving a suspect under the age of 18:
  • The views of the local authority or Children and Young People’s Service as to whether a prosecution is required
  • Any risk assessment or report completed by the local authority or Youth Offending service in respect of sexually harmful behaviour (NOTE - this is only required if it already exists it does not need to be commissioned for the purposes of a charging decision)
  • Background information and history of the parties
  • The views of the families of all parties.

i) Information about compliance and assurance 

• The referral has been subject to quality assurance and that the material and information is submitted in compliance with this guidance
• There has been consideration of the impact of potentially disclosable material on the decision to charge, including any unexamined material, or material that could be obtained through further reasonable lines of inquiry.

j) Contact details and availability for a face-to-face meeting

• Name, location, e-mail and contact telephone number for the officer in the case and his/her supervisor 
• Officers and prosecutors should identify those cases which would benefit from a discussion either by telephone; face to face 
• or on-line and make appropriate arrangements. Officers should provide their availability to support this.