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: keep the decision under active review, pursue the outstanding evidence on an agreed timetable, and apply the Full Code Test as soon as the anticipated further evidence is received (in Crown Court cases, before formal service of the prosecution case). They must either:

• Apply the 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 for summary-only offences; 70 days for either-way offences (reduced to 56 if the case is allocated to summary trial within the first 56 days)

Crown Court: 182 days from the date the case is sent

If threshold charged: the custody clock starts even though the evidence is 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:

"The Crown charged on the Threshold Test and have not confirmed the Full Code Test is met within a reasonable time. Application to dismiss or for bail."

Making an Application to Dismiss

When: If CPS have not completed the review within a 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

Reference points:

• Code for Crown Prosecutors, Threshold Test (§§5.1–5.11)
• Director's Guidance on Charging (6th edition)
• On custody time limits and prosecution diligence: R v Manchester Crown Court, ex parte McDonald [1999] 1 Cr App R 409

Practical Tips

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

✓ Record representations made against it

✓ Diarise the custody time limits and chase the review

✓ Chase CPS proactively for the Full Code Test 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 all five conditions met, including substantial bail risk)
2. CPS keep the decision under active review and pursue outstanding evidence on an agreed timetable
3. As soon as the anticipated evidence is received, either:

• Apply the Full Code Test (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 keep this under review and decide, as soon as the further evidence comes in, whether there's actually enough to meet the normal charging test.

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 the Full Code Test review

✓ Apply to court if review delayed

✓ Argue bail throughout (threshold = weaker case)

Further Reading

• Code for Crown Prosecutors (Threshold Test)
• Director's Guidance on Charging (6th edition)
• CPS Custody Time Limits guidance

Article current as at November 2025.