General Principles, Police Powers and Procedures - Instituting Criminal Proceedings

Question 1

How can a defendant appear before a magistrates court?

Answer 1

• being arrested and charged
• being arrested, granted police bail and charged
• being arrested, granted CPS bail and charged
• being served with a written charge and requisition without being arrested
• private prosecution - summons
• issuing of a warrant from the court for the defendant to be arrested and brought to court

Question 2

Written Charge and Requisition

Answer 2

• relevant prosecutor may institute criminal proceedings by issuing a written charge document
• must at the same time issue a a requisition (requiring person to attend court to answer the charge) or single justice procedure notice (notice of whether the accused desires to plead guilty/ not guilty and if guilty whether they desire to be tried - need to inform the designated officer - must be written but can be from solicitor on person’s behalf)
• charges and requisition must be served on the person concerned and a copy served on the court named
• charges and single justice procedure notice must be served on the person concerned and the designated officer

Question 3

If the prosecutor fails to issue a requisition and/ or serve the documents, will the criminal proceedings be nullified?

Answer 3

No - they are instituted by written charges so will be just a procedural error - does not render the institution of proceedings a nullity (DPP v McFarlane [2019])

Question 4

Single justice procedure notice

Answer 4

• heard by a single justice
• attained the age of 18
• charged with a summary offence that does not carry imprisonment
• intend to plead guilty
• agree to the case being dealt with by a single justice without a hearing and in the absence of the parties
• if the parties appear, must proceed as if the party was absent
• relevant prosecutor includes a police force, the DPP, the director of the SFO, the direction general of the NCA, and those persons specified by the Secretary of State (e.g. Secretary of State for Work and Pensions)

Question 5

How can a summons be served?

Answer 5

• handing it to the person in person / to a person holding senior position in a corporation
• posting it to the person at an address where it is reasonably believed the person will receive it
• addressing it to a person and leaving it for the person at an address where it is reasonably believed they will receive it
• sending it through electronic means
• sending through document exchange box and has not refused service
• sending it to his or her custody
• sending it to the legal representative
• where under 18, a copy must also be served on a parent/ guardian of the defendant
• does not apply in relation to a judgement summons (must be served personally)

Question 6

Warrant of Arrest

Answer 6

• a warrant of arrest issued by a justice of the peace will remain in force until it is executed or withdrawn or it ceases to have effect in accordance with rules of court
• a warrant of arrest, warrant of commitment, warrant of detention, warrant of control or search issued by the justice of the peace may be executed anywhere in england and wales by any person to whom it is directed or by any constable acting within his police area
• aged 18 or over
• indictable offence/punishable with imprisonment or person’s address is not sufficiently established for a summons/ written charge and requisition to be served on him/ her
• can be issued for witnesses where evidence is given that a summons would not procure the attendance of the person or the person has failed to attend court in response to the summons

Question 7

Warrant execution

Answer 7

• warrant may be executed by any person to whom it directed or anyone authorised to do so/ civilian enforcement officers/ approved enforcement agencies (if issued by magistrates court)
• person who executes a warrant must explain in terms the defendant can understand what the warrant requires and why
• show the defendant the warrant if that person has it
• if the defendant asks, arrange for the defendant to see the warrant if they don’t have it, show the defendant any written statement of that person’s authority to execute the warrant

Question 8

Disclosure of Information for Enforcing Warrants

Answer 8

• Magistrates may make a disclosure order if satisfied it is necessary to do so for the purpose of executing a warrant
• applies to warrant of arrest, commitment, detention or control or any order imposed or made on conviction
• disclosure order is an order requiring the person to supply a designated officer for the court with any of the following information about the person to who the warrant relates, such as his name, date of birth or national insurance number, his address (or any addresses)

Question 9

When can a justice of the peace issue a warrant for a witness?

Answer 9

The Magistrates’ Courts Act 1980 provides that a justice of the peace may issue a warrant where he/she is satisfied that it is in the interests of justice to secure the attendance of a person who could give material evidence. However, a warrant may only be issued where the justice of the peace is satisfied, by evidence on oath, that a summons would not procure the attendance of the person (s. 97(2)). In addition, a warrant may also be issued where a person fails to attend the court in answer to a summons where there is proof of its service if it appears to the court that there is no just excuse for the failure (s. 97(3))

• Any court can issue the warrant, not just Magistrates Court

Question 10

Can a civilian enforcement officer enter and search a premises for the purpose of executing a warrant?

Answer 10

Civilian enforcement officers and approved enforcement agencies may be authorised to enter and search premises for the purposes of executing a warrant (for or in connection with any criminal offence), only to the extent reasonably required, and where they have reasonable grounds for believing the person is on the premises

Question 11

Can a constable enter and search a premises for the purpose of executing a warrant?

Answer 11

In order to execute a warrant of arrest issued in connection with, or arising out of, criminal proceedings, or a warrant of commitment issued under s. 76 of the 1980 Act, a constable may enter and search any premises where he/she has reasonable grounds for believing the person sought is on the premises. The search may only be to the extent required and is restricted to the parts of the premises where the constable reasonably believes the person may be. Reasonable force may be used when necessary. These powers are derived from ss. 17(1)(a) and 117 of the Police and Criminal Evidence Act 1984.