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Commencing Criminal Proceedings Correctly

Maze iStock 000010116024XSmall 146x219All criminal cases begin in the magistrates' court however serious the offence. The LexisPSL Corporate Crime team set out the correct steps that need to be taken when commencing proceedings in these ways.

There are three main ways of commencing proceedings

o     the defendant may be arrested and charged by the police
o     the prosecution may issue a written charge together with a requirement (a 'requisition') requiring the defendant to attend court, or
o     the prosecution can obtain a summons issued by the court requiring the defendant to attend court on a specified date and time

Instituting proceedings by way of police charge

Where there is enough evidence to provide a realistic prospect of conviction the defendant will be brought before the custody officer and charged with the offence(s). Details of the offence(s) will appear on the charge sheet. The defendant is either produced before the court in custody or bailed to attend court at a specified time and date.

Under the Bail Act 1976 (BA 1976) the CPS now plays a fundamental role in advising the police on appropriate charges. Under guidance issued by the Director of Public Prosecutions (DPP), only the CPS can authorise charges in respect of indictable only offences and specified either-way offences. The police can charge a suspect without reference to the CPS in most summary-only matters. The police may also charge without CPS advice in certain triable either-way cases where a guilty plea is anticipated and suitable for sentence in the magistrates' court.

Instituting proceedings by way of a written charge and requisition

The Criminal Justice Act 2003 (CJA 2003) sets out a new method of commencing proceedings. Under the provisions a prosecutor may institute proceedings by issuing a written charge of the offence accompanied by a written requirement, known as a 'requisition', requiring the defendant to appear before the court to answer the charge.

The new procedure currently only applies in magistrates' courts in areas specified by statutory instrument under the CJA 2003. The date for full implementation has not yet been appointed.

The method is only available to 'public prosecutors' as defined under CJA 2003. These are:

o     a police force
o     the director of the Serious Fraud Office
o     the DPP (this includes the CPS)
o     the director of Revenue and Customs prosecutions
o     the Director General of the Serious Organised Crime Agency
o     the Attorney-General
o     a person specified or authorised by the Secretary of State, and
o     the Secretary of State for Business, Innovation and Skills or a person authorised by the Secretary of state for Business, Innovation and Skills to institute criminal proceedings

Drafting a written charge

The Criminal Procedure Rules 2014, SI 2014/1610 (Crim PR 2014) provide that the written charge must contain a general statement of the offence in non-technical language and provide sufficient particulars of the conduct alleged.   

If there is more than one incident of the commission of the offence those incidents may be included in the allegation.

A single document may also contain more than one offence.

The CJA 2003 stipulates that the requisition must be issued at the same time as the written charge.

The written charge and requisition must be served on the defendant by the prosecutor. The court plays no role in communicating the requirement to attend court under the new provisions.

A copy of both the written charge and requisition must also be served on the court specified in the requisition.

Service of the requisition on the defendant

Under Crim PR 2014 a requisition may be served on an individual by:

o     handing it to him, or
o     by leaving it at, or sending it by first-class post to, an address where it is reasonably believed he will receive it

A requisition cannot be served by fax, email or through document exchange (DX).

Service of a requisition on a corporation may be effected by handing it to a person holding a senior position in that corporation or by leaving it or posting it to its principal office. If no principal office is readily identifiable the requisition can be left or posted to any place where the corporation carries on its business.

Instituting proceedings by way of a summons

In areas where the written charge and requisition procedure have not yet been implemented or where the prosecutor is not a public prosecutor under the CJA 2003, proceedings may be instituted by means of laying an information.

An information is a statement that tells the court what offence the defendant has allegedly committed.

An information is laid when it is received by the clerk's office in the magistrates' court. The laying of an information can be done by a prosecutor or by a person authorised on his behalf.

An information should be laid by an individual and not by an unincorporated association such as a police force.

A valid information may only be laid by a prosecutor or an authorised person under the Legal Services Act 2007, s 13 and 14.

Under Crim PR 2014 the information can be in writing or a prosecutor can present an information orally to the court.

Drafting a summons

The rules governing the content of the information are the same as the rules for a written charge.  

If the information fails to give sufficient particulars this does not render the proceedings void. However, the court has held that defendants must still be provided with the requisite information in good time for him to properly defend himself.  

Obtaining a summons from the court

Once the information has been laid before the magistrates' clerk the court may issue a summons under the Magistrates' Court Act 1980 (MCA 1980). The summons must specify each offence against the defendant. It must also contain a notice of when and where a defendant has to attend court.

The decision whether to issue a summons is a judicial one, not an administrative one.

Before issuing a summons the magistrate or the clerk must be satisfied:

o     the offence alleged in the information is known to law
o     the information was served on the court within the applicable time limits for instituting proceed-ings for an offence
o     the court has jurisdiction, and
o     any consent necessary to commence proceedings had been obtained

There is also a residual discretion not to issue a summons. This may be exercised if the prosecution appears frivolous or vexatious, or if there is some other compelling reason, eg undue delay.

There is no requirement on the part of the clerk or the magistrate to consider the evidence before issuing a summons.

Neither is there a duty to make enquiries into the historical basis of the information. However, a summons should not be issued where enquiries reveal the prosecution has been a knowing party to serious procedural irregularities.  

The MCA 1980 does not require the summons to be issued immediately on consideration of the information by the clerk or the magistrate. The prosecution can ask the court to delay issuing a summons. This may happen, for example, because the defendant is abroad.  

The prosecution should not lay information when it has not in fact reached a decision to prosecute. To do so would be an abuse of process of the court.

Amendment of summons or charge

The MCA 1980 provides that defects in the form or substance of an information or charge are not grounds for objection.

In the case of trivial defects, a conviction will stand even though the information or charge has not been amended (R v Sandwell Justices ex p West Midlands Passenger Transport Executive [1979] Crim LR 56).

The prosecution should apply for an amendment where the variation between the information or charge and the evidence is substantial. If the court grants an amendment it should also grant an adjournment where the defence have been misled by the original charge.

Failure by the prosecution to apply for an amendment or by the court to grant an adjournment, where the defence is entitled to one, may lead to a conviction being quashed.

Time limits for summary only offences

There are generally no statutory time limits for prosecuting indictable offences. However, the MCA 1980 imposes time limits for commencing proceedings by way of laying an information. Under the provisions a magistrates' court may not try a defendant for a summary offence unless the information was laid within six months from the date of the commission of the offence. Provided it is laid within that time, it does not matter if the summons is not issued by the court within that time limit. Failure to observe these statutory time limits will mean the prosecution will be time-barred from commencing proceedings.

The court in R v Myers [2013] EWCA Crim 2423 considered the ability of the court to amend a charge outside the six month time limit, the principle ground of appeal being the court had no jurisdiction to try the information because section 127 of the MCA 1980 precludes the laying of an information outside the six month time limit. The court found that the wrongdoing of the applicant Myers was fundamentally different to the wrongdoing alleged in the original indictable offence, so no amendment of the indictable offence could have been permitted. Accordingly, the court ruled that the court had no jurisdiction to allow the laying of the new information pursuant to section 5(2) of the Criminal Justice Act 1967.

The MCA 1980 does not expressly refer to the time limits for commencing proceedings by way of the new written charge and requisition procedure. Consequently it is not clear if the time limit for commencing pro-ceedings under the new procedure commences from the time the written charge and requisition is issued or when the documents are received by the defendant.

The Crim PR 2014 stipulate that a written charge for a summary only offence must be issued within six months from the date of the commission of the offence.

It is likely that the time will start to run from the date when the written charge and requisition is issued and not the date when the documents are received by a defendant.

Amendment of summons or charge outside statutory time limits

Where an information has been laid within the six-month time limit the Divisional Court has held it can be amended after the expiry of the time limit provided that:

o     the amendment arises out of the same or substantially the same facts as the original offence, and it is in the interest of justice

In DPP v Williams [2009] All ER (D) 292 (Jul) an issue arose as to whether the magistrates' court had been correct to allow an amendment of a charge of failing to provide a specimen of breath to one of failing to provide a specimen of urine. The Administrative Court held that the justices were correct in holding that the alternative charge was based on the same facts but ruled that it was not in the interests of justice to permit the amendment on the facts of the case because of the failure of the Crown to comply with the criminal procedure rules. The court also provided guidance on the application of the test set out in Scunthorpe Justices. The test is not whether the 'wrong doing is different' but whether the new offence arises out of the same (or substantially the same) facts as gave rise to the original offence.

This article was originally published in LexisPSL Corporate Crime.

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