Sexual offence investigations in England and Wales often begin with suspicion, allegation or witness accounts well before any conclusive physical or digital evidence is secured. In these early stages, officers may rely on circumstantial information to justify arrest, search or interview under caution. In some cases, the police may involve the Crown Prosecution Service (CPS) early in the process, even while evidence is still being gathered. But if the police can act without full proof, how much evidence is actually needed before a formal charge becomes likely?

If you are under investigation or suspect that you soon will be, it is vital to seek legal advice from an experienced criminal defence lawyer at the earliest opportunity. Instructing a criminal defence solicitor from the outset gives you the best chance of challenging weak evidence, influencing how the investigation progresses and protecting your rights as the case develops. In this article, we explain how the charging process works in sexual offence cases, what counts as evidence, and how the CPS decides whether to proceed with a formal charge.

What counts as evidence in a criminal case?

In sexual offence cases, evidence isn’t limited to DNA or CCTV footage. Most investigations hinge on a combination of statements, digital material and circumstantial details. Police and CPS lawyers may rely on:

• Witness statements from the complainant, third parties or expert testimony.
• Digital evidence like text messages, dating app chats, social media posts, call logs or GPS data.
• Physical evidence such as forensic reports, clothing, photos of injuries or medical records.
• Circumstantial evidence including behaviour before and after the incident, patterns of contact or inconsistencies in the suspect’s account.

The law does not require conclusive proof before someone is charged. The test is whether the available evidence, taken together, could support a conviction by a reasonable jury or magistrate. In many cases, charges can be brought on the strength of a single compelling witness statement or a pattern of circumstantial facts even where no forensic or digital evidence exists.

What if there is no direct evidence?

It’s common for sexual offences to be prosecuted without physical or digital evidence. In many cases, it is the complainant’s statement - sometimes with limited corroboration - that forms the backbone of the case. Where the account is detailed, consistent, and plausible, the police and CPS may consider this sufficient to justify charges.

For example, if a complainant alleges non-consensual sex on a date and the accused denies wrongdoing but admits the encounter occurred, the CPS may consider a charge even if there is no CCTV, medical report or physical evidence.

If the CPS believes a jury could accept the complainant’s version, that alone can lead to a charge, particularly if the suspect offers no reasonable explanation or defence. This is why early legal advice is vital. A defence solicitor can examine inconsistencies in the prosecution’s case, test the credibility of evidence, and build context around what actually occurred.

What is the CPS’s role in charging decisions?

In cases involving rape, sexual assault, or other serious sexual offences, the police will refer the matter to the CPS for a charging decision. The CPS applies what is called the Full Code Test, which has two stages:

• Evidential stage: Is there enough evidence to provide a realistic prospect of conviction?
• Public interest stage: Is it in the public interest to prosecute this case?

If both are satisfied, a charge is usually brought. If not, the CPS may request more evidence or decide not to proceed.

This is a crucial moment in any case. With the right defence solicitor involved, it's possible to challenge the evidence before a case gets to court. A skilled lawyer can make immediate representations to challenge weak evidence, expose inconsistencies and push back against premature charging. Early legal intervention often makes the difference between walking away and facing prosecution.

What is the threshold test?

In urgent cases - usually when a suspect is in custody and time is running out - the CPS can apply the Threshold Test. This allows charges to be brought before all the evidence is available, provided:

• There is a reasonable suspicion that the suspect committed the offence.
• There are reasonable grounds to believe further evidence will become available.
• The case is serious enough to justify immediate action.
• It is in the public interest to proceed now.

Sexual offences often meet these criteria, particularly where the complainant is considered vulnerable, or there’s perceived risk to others. If the full evidence does not emerge, the case may later be dropped. 

Does your age, vulnerability or mental health affect charges?

The CPS considers a range of personal factors before bringing charges, including:

• The suspect’s age (young people may be dealt with through diversion, a process through which they are educated and recieve support with the underlying issues that led to the offence rather than going to court).
• The suspect’s mental health history.
• The vulnerability (e.g. any learning disabilities, exploitation) of both the suspect and the victim.
• Whether the harm caused justifies a prosecution.

This is part of the public interest test and may lead to a proportionate response, such as diversion from prosecution or further evidence being required to continue. A skilled criminal defence solicitor needs to be involved immediately if you're at risk of being charged. These personal factors can dramatically shift how your case is treated, but only if they’re clearly set out and evidenced from the start. At Tyler Hoffman, we will act fast to present these arguments directly to the CPS and seek to avoid charges. If the CPS proceeds, we’ll push for a proportionate response to mitigate the penalty should you be found guilty.

What should I do if I think I’ll be charged?

If the police are investigating you or have invited you to a voluntary interview under caution, you must take the matter seriously even if you believe there is no evidence against you. The CPS may still bring charges if they believe the available evidence, such as a witness statement, is credible and that there’s a realistic prospect of conviction.

Before saying anything to the police, get legal advice. Tyler Hoffman can dispatch a solicitor to attend the police station and advise you during pre-charge engagement to protect your rights from the very start.

We defended clients across a range of serious criminal offences, including sexual offences. We work at speed to identify weaknesses in the prosecution’s case, shut down arguments based on flawed reasoning and apply pressure early to secure the best possible outcome, including, in some cases, having all charges dropped.