Threshold Test Charging: What Reps Need to Know

What is the Threshold Test?

Normal charging standard (Full Code Test):

1. Realistic prospect of conviction, AND
2. Public interest in prosecution

Threshold Test (lower standard):

1. Reasonable suspicion (not full evidence yet)
2. Further evidence will be obtained
3. Seriousness/public interest justifies charge NOW
4. Continued investigation likely to provide full code test evidence

When Can It Be Used?

Threshold test only applies when:

✓ Suspect presents substantial bail risks, OR

✓ Not practical to obtain full evidence before charging

Substantial bail risks means:

• Would abscond if bailed
• Would interfere with witnesses
• Would commit further serious offences
• Own protection requires custody

Examples:

• Domestic violence (victim safety concerns)
• Witness intimidation risk
• Serious violence (public protection)
• Historic offences being investigated but suspect flight risk

The Problems

Issue 1: Overuse

Intended: Exceptional cases only

Reality: Used routinely in some forces (especially DV cases)

Effect: People charged and remanded without sufficient evidence

Issue 2: Delayed Reviews

CPS should: Review within 40 days and either:

• Apply full code test (sufficient evidence), OR
• Discontinue (insufficient evidence)

Reality: Reviews often delayed months

Effect: Defendants remanded on weak evidence

Issue 3: Custody Time Limits

Magistrates' Court: 56 days (70 if sent to Crown within 56)

Crown Court: 182 days

If threshold charged: Clock starts even though evidence weak.

Risk: Case may fail full code test but defendant held on remand.

Your Role at Police Station

Challenge the Threshold Decision

If custody sergeant says: "CPS want to charge on threshold test."

Your response: "On what basis? What are the substantial bail risks?"

Questions to ask:

1. What evidence is actually available NOW?
2. What further evidence is anticipated?
3. When will it be obtained?
4. What are the specific bail risks?
5. Have conditions been considered? (e.g., non-contact, curfew, tagging)

Make Representations

Script:

"I note CPS propose threshold test charging. I submit:

1. Insufficient evidence at present for realistic prospect of conviction
2. My client does NOT present substantial bail risks because [reasons]
3. Appropriate bail conditions would address any concerns: [propose conditions]
4. Not fair to charge and remand when evidence so weak
5. Should be bailed for further investigation"

In writing: Follow up with letter to CPS copied to instructing solicitor.

At Court

First Hearing (Charged on Threshold)

Your duties:

1. Explain to client: Case charged on lower standard, CPS must review soon

1. Oppose remand: "Crown charged on threshold test. Evidence weak. Bail appropriate with conditions."

1. Set out bail package: Residence, curfew, reporting, surety, security

1. Ask court to note: Threshold charge, review required

Subsequent Hearings

Monitor: Has CPS completed review?

Chase: Ask CPS for update on review

If delayed: Apply to court:

"40-day review period has expired. Crown have not confirmed full code test met. Application to dismiss or bail."

Making an Application to Dismiss

When: If CPS have not completed review within reasonable time

Basis:

• Threshold test no longer justified
• Delay unreasonable
• Evidence not forthcoming as anticipated
• Breach of custody time limits risk

Relief sought:

• Case dismissed, OR
• Bail (if currently remanded), OR
• Abuse of process stay

Case law:

• R v DPP ex parte Lee [1999] (threshold test strictly limited)
• R v Inland Revenue, ex parte Dhesi [1995] (delay fairness)

Practical Tips

✓ Note threshold charging in custody (get it in writing)

✓ Record representations made against it

✓ Diarise 40 days from charge date

✓ Chase CPS proactively for review

✓ Court applications if review delayed

✓ Argue bail at every opportunity (evidence still weak)

Common Scenarios

Domestic Violence

Police say: "Victim safety concerns = threshold charge."

Your response: "Conditions can protect victim: non-contact, exclusion zone, electronic tag. Remand not necessary."

Witness Intimidation Risk

Police say: "Client threatened witnesses before."

Your response: "Any evidence of that? If so, condition of no contact with witnesses. If complied with, no risk."

Serious Violence / Public Protection

Police say: "Public safety requires remand."

Your response: "Curfew, tag, surety can manage risk. Remand disproportionate when evidence weak."

What Should Happen (But Often Doesn't)

Proper process:

1. Threshold charge (only if bail risks)
2. CPS review within 40 days
3. Either:

• Apply full code (sufficient evidence) → proceed
• Discontinue (insufficient evidence) → case ends

What actually happens:

1. Threshold charge (sometimes without proper bail risk assessment)
2. Review delayed (2-3 months)
3. Defendant remanded whole time
4. Eventually discontinued (after months in custody)

The injustice: Remand on weak evidence, later found insufficient.

Client Advice

Explain:

"You've been charged, but on a lower test than usual. The evidence is currently weak. CPS must review within 40 days and decide if there's actually enough evidence.

I'll be pushing for bail and monitoring the review.

There's a good chance the case could be dropped if the evidence doesn't materialize."

Manage expectations: Even if threshold weak, case may still proceed if further evidence obtained.

Key Takeaways

✓ Threshold test is exceptional - should be rare

✓ Challenge it at police station (make representations)

✓ Oppose remand (evidence weak, conditions sufficient)

✓ Chase CPS for 40-day review

✓ Apply to court if review delayed

✓ Argue bail throughout (threshold = weaker case)

Further Reading

• Code for Crown Prosecutors (Threshold Test section)
• DPP Guidance on Threshold Test
• R v DPP ex parte Lee [1999]
• CPS Bail and Remand Guidance

Article current as at November 2025.