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Why the Pre-Charge Stage Matters in Fraud Cases

Fraud allegations are among the most complex in the criminal justice system, often involving sprawling financial records, digital evidence, and multiple witness statements spanning months or years. The pre-charge stage is your most important window to shape the outcome. Once charges are brought, the prosecution's narrative hardens and your options narrow significantly. By contrast, early intervention—requesting disclosure, clarifying facts, and submitting written representations—can prevent charges entirely or lead to reduced allegations.

The CPS must satisfy both the evidential test and the public interest test before authorising a charge. If you can demonstrate, through clear documentation and reasoned argument, that the evidence does not support a realistic prospect of conviction, or that prosecution would not serve the public interest, you stand a real chance of the case being closed with no further action. This is not a passive process. It requires gathering the right material, identifying weaknesses in the investigation, and presenting your position persuasively.

Requesting Disclosure

At the pre-charge stage, the police are not obliged to provide full disclosure. However, you can—and should—make targeted requests for key material. This might include:

• Bank statements and transaction records relied upon by investigators

• Emails, messages, and digital communications said to evidence dishonesty

• Witness statements from complainants, colleagues, or third parties

• Expert or forensic accounting reports used to support the allegations

• Summaries of the alleged offending and the basis for suspicion

Even if the police decline to disclose everything, making a formal written request creates a record. If the case progresses, this can support arguments about the fairness of the investigation and the adequacy of disclosure. Reviewing whatever material you do receive carefully—cross-referencing dates, amounts, and names—can reveal errors, omissions, or misinterpretations that form the backbone of your representations.

Written Representations: What to Include

Strong written representations are the single most effective tool at the pre-charge stage. They should be clear, factual, and structured. A good set of representations will:

• Highlight legitimate business activity: If the transactions under suspicion are routine business dealings, supported by contracts, invoices, or board minutes, lay this out clearly. Investigators may not understand your industry's norms.

• Challenge the allegation of dishonesty: Since Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, the test for dishonesty is objective—would ordinary, reasonable people consider the conduct dishonest? If you can show a genuine belief in your right to act as you did, or that the transactions were authorised, this undermines the prosecution case.

• Identify errors in accounting or interpretation: Financial evidence is often misread. Payments labelled as "suspicious" may have perfectly innocent explanations—intercompany transfers, director's loan repayments, or tax planning. A clear narrative, supported by documents, can dismantle an assumption-based case.

• Point out procedural errors: If the investigation involved unlawful searches, failure to follow PACE Codes, or improper handling of evidence, reference this. Procedural failings can undermine the admissibility and reliability of key evidence.

• Request further lines of enquiry: If there are witnesses the police have not spoken to, documents they have not obtained, or explanations they have not considered, set these out. The officer in charge is required to pursue all reasonable lines of enquiry, whether they point towards or away from the suspect (see Criminal Procedure and Investigations Act 1996 and the 2015 Code of Practice).

Common Grounds for Dismissal

Fraud cases are often built on inference and assumption. The following are among the most effective grounds for seeking no further action:

• No evidence of dishonesty or intent: The prosecution must prove you acted dishonestly by the standards of ordinary, reasonable people (the "Ivey test"). If you acted openly, with professional advice, or in line with standard business practice, this is a powerful defence.

• Transactions were authorised or commercially justified: If you can show that payments were approved by a director, board, or client, or that they served a legitimate business purpose, the allegation falls away.

• Evidence is circumstantial or based on assumptions: Many fraud investigations rely on patterns or anomalies in financial data. If the prosecution cannot point to direct evidence of dishonesty—only to suspicion—this is a significant weakness.

• Procedural errors in the investigation: Unlawful search and seizure, failure to caution, improper interview techniques, or failure to retain and disclose relevant material can all undermine the case.

Important Evidence to Gather

The strength of your pre-charge position depends on the quality of your evidence. Start gathering material as early as possible:

• Bank statements, invoices, contracts, and receipts showing the legitimate source and purpose of transactions

• Emails or written communications demonstrating consent, authorisation, or the absence of dishonesty

• Witness statements from colleagues, accountants, business partners, or clients who can speak to the nature of the transactions

• Expert reports (if needed) to explain complex financial arrangements, industry norms, or accounting practices

• Board minutes, resolutions, or internal policies that authorise the transactions in question

Pitfalls to Avoid

Many people under investigation for fraud make avoidable mistakes that weaken their position. The most common pitfalls include:

• Not challenging the interpretation of financial evidence: Investigators may draw conclusions from data they do not fully understand. If you do not offer an alternative explanation, their interpretation stands unchallenged.

• Failing to provide supporting documents early: Waiting until after charge to produce key evidence is far less effective. Pre-charge representations, backed by documentary evidence, carry significant weight with the CPS.

• Neglecting to identify witnesses: Colleagues, accountants, and business partners may be able to explain transactions or vouch for your conduct. If the police have not spoken to them, request that they do.

• Ignoring procedural errors: Even small breaches of PACE or disclosure obligations can affect the admissibility of evidence.

Precedent and Practice

The CPS must prove dishonesty and intent beyond reasonable doubt. The evidential test requires a realistic prospect of conviction, and the public interest test must also be satisfied. In fraud cases, the complexity of financial evidence often means the evidential test is harder to meet than investigators assume. Early, detailed representations—supported by clear documentation and, where appropriate, expert evidence—can persuade the CPS that proceeding would not be justified.

If you are under investigation for fraud, do not wait for charges to be brought. Prepare a clear timeline of events, gather all relevant documents, and identify witnesses who can support your version of events. Challenge any assumptions made by investigators and request further lines of enquiry if evidence is missing or unclear. Uploading your documents and correspondence to Caira can help you organise your material, spot inconsistencies, and draft strong representations.

How People Use Caira in Fraud Investigations

People facing fraud investigations use Caira to take practical, informed steps towards resolving their situation. Common goals include:

• Working towards having a case dropped before charges: Uploading financial records, correspondence, and witness statements to identify weaknesses in the prosecution's assumptions and prepare draft representations aimed at no further action.

• Building a defence strategy: Analysing the evidence relied on by investigators, spotting flawed assumptions or misinterpreted financial data, and organising material to present a clear, credible account of legitimate business activity.

• Preparing representations to the CPS: Drafting structured submissions that highlight evidential gaps, procedural errors, or alternative explanations—with the aim of persuading the CPS not to proceed.

• Requesting varied bail or restraint conditions: Reviewing bail paperwork, restraint orders, or frozen account notices and preparing written requests where conditions may be disproportionate or unnecessarily restrictive.

• Seeking early resolution: Identifying opportunities to intervene with investigators to close matters early, resolve disputes, or prevent escalation to formal charges.

Disclaimer: This article is general information only and does not constitute legal, financial, or tax advice.