Guidance on the Use of the Threshold Test

Feedback from some of the post-implementation reviews of charging received from CPS Direct and the outcome of a number of cases indicated that there appeared to be in certain cases a misunderstanding on the part of both police officers and prosecutors as to the circumstances in which the Threshold Test may be applied and the extent to which a prosecutor has to be satisfied that there are lawful grounds to justify the continued detention of an individual.

As a result guidance, on the use of the Threshold Test has been issued by the Director of Public Prosecutions (DPP). The aim of this Guidance is to explain:

• When it is appropriate to make charging decisions applying the Threshold Test (a lower evidential standard).

• The circumstances in which cases may be referred to a prosecutor for a charging decision.

• The stage at which a Custody Officer may decide to take no further action in a case.

• When suspects may be released on pre-charge bail, with conditions if necessary.

The guidance points out that application of the Threshold Test to charging decisions is only permitted in the limited circumstances set out in the Code for Crown Prosecutors and in the Guidance on Charging issued by the DPP under Section 37A of the Police and Criminal Evidence Act. The guidance states that the Threshold Test is not to be regarded as a shortcut to obtaining a charging decision to place offenders before a court quickly. The amendments to Section 37 (7) PACE are intended to ensure that, in any case where a suspect is suitable to be released on bail, the evidence required to satisfy the Full Code Test is gathered before charging takes place.

It states that prosecutors should, wherever possible, always seek to apply the Full Code Test when considering the charging of a case.

It describes the Threshold Test as a temporary test, not an interim stage to be reached in every case. It states that the Threshold Test may only be applied when:

• The available evidence establishes at least reasonable suspicion that the suspect has committed the offence under consideration, but

• The evidence to allow consideration of the Full Code Test is not yet available, and

• Steps are being or are about to be taken to obtain that evidence and there is a likelihood of it becoming available in a reasonable time.

• The evidence will have a significant impact on the case.

• The custody officer has decided it would be appropriate to detain the suspect in custody after charge until the next court hearing, and

• An application to withhold bail can properly be made at court by a prosecutor.

The guidance is binding on the police and CPS in areas that are signed off to operate under the statutory charging arrangements.

Advice issued by ACPO states that forces currently operating shadow schemes should comply with the general principles contained in the guidance, but should note that the references to release on bail pre-charge only apply to unconditional bail. Therefore, where a prosecutor is satisfied that a suspect should be detained for an application to be made to a court for a remand in custody, or requires to be charged in order that bail conditions may be imposed by the custody officer or court, the Threshold Test is the appropriate test to be applied in reviewing the available evidence at that stage.

The guidance is being circulated via normal police channels. In addition, in order to try and ensure speedier implementation, CPS managers have been encouraged to discuss it with police managers at their regular liaison meetings.