Instituting Criminal Proceedings Flashcards
There are many ways in which the appearance of a defendant before a magistrates’ court can be secured
- by the accused being arrested and, following CPS advice, charged by the police and brought before a court; or
- by the accused being arrested and then granted police bail to give the CPS time to decide whether to prosecute; the CPS may then start a prosecution by using the ‘written charge and requisition procedure’; or
- by the accused being arrested and then granted bail subject to a requirement to return to the police station on a specified date; where the CPS decide there is sufficient evidence to charge the police will charge the accused when they answer their bail; or
- by the accused being served with a ‘written charge and requisition’ without first having been arrested; or
- in the case of a private prosecution, by the laying of an information by the prosecutor before a magistrate resulting in the issue of a summons requiring the accused to attend at court on a specified day to answer the allegation in the information; or
by the laying of an information by a prosecutor before a magistrate resulting in the issue of a warrant for the defendant to be arrested and brought before the court. Alternatively, the warrant may be backed for bail where the defendant is arrested and then released on bail to attend court on a specified day.
How are criminal proceeding instituted?
By the issue of a written charge. A failure to issue a requisition and/or serve the documents is a procedural error and does not render the institution of proceedings a nullity (DPP v McFarlane [2019] EWHC 1895 (Admin)).
Criminal Justice Act 2003, s. 29
In relation to s. 29(2B), a single justice procedure notice is where the case is heard by a single justice. The accused must have attained the age of 18, be charged with a summary offence that does not carry imprisonment, intend to plead guilty and agree to the case being dealt with by a single justice without a hearing and in the absence of the parties and, if a party appears, must proceed as if the party were absent. (s. 16A of the Magistrates’ Courts Act 1980).
A ‘relevant prosecutor’
For the purposes of s. 29(5) includes a police force, the DPP (and therefore the CPS), the Director of the SFO, the Director General of the NCA and those persons specified by the Secretary of State, for example the Secretary of State for Work and Pensions.
Service of the Summons or Requisition
Where the person is a corporation, the address for service under this rule is the person’s principal office, and if there is no readily identifiable principal office, then any place where it carries on its activities or business (para. (2)).
A witness summons may only be served in accordance with para. (1)(a), (d) or (f) (para. (6)).
Paragraph (7) provides that this rule does not apply in relation to a judgment summons (for which r. 58 requires service on the judgment debtor personally).
Where a summons or requisition is served on a defendant under 18, a copy must also be served on a parent or guardian of the defendant, and if the court requires the parent or guardian to attend, the copy may impose that requirement or a separate summons or requisition may be issued for that purpose (r. 7.4 of the Criminal Procedure (Amendment) Rules 2022 (SI 2022/45)). The court must require the parent or guardian to attend where the defendant is under 16 (s. 34A of the Children and Young Persons Act 1933).
The legislation that deals with the service of documents outside England and Wales
- Section 39 of the Criminal Law Act 1977 (service in Scotland and Northern Ireland) provides that (a) a summons, (b) a written charge, (c) a requisition and (ca) a single justice procedure notice, requiring a person charged with an offence to appear before a court in England or Wales, and any other document which, by virtue of any enactment, may or must be served on a person with, or at the same time as, a document mentioned in para. (a), (b), (c) or (ca) above, may, in such manner as may be prescribed by rules of court, be served on him in Scotland or Northern Ireland (s. 1). This also applies to a summons directed to a person that is issued after the person’s trial has begun (s. 1A).
- Section 1139(4) of the Companies Act 2006 (service of copy summons etc. on company’s registered office in Scotland and Northern Ireland).
- Sections 3, 4, 4A and 4B of the Crime (International Co-operation) Act 2003, and rr. 49.1 and 49.2 of the Criminal Procedure Rules 2020 (service of summons etc. outside the United Kingdom).
Section 1139(2) of the Companies Act 2006 (service on overseas companies).
Issue of Warrants
Section 125 of the Magistrates’ Courts Act 1980 deals with the execution of warrants and provides:
(1) A warrant of arrest issued by a justice of the peace shall remain in force until it is executed or withdrawn or it ceases to have effect in accordance with rules of court.
(2) A warrant of arrest, warrant of commitment, warrant of detention, warrant of control or search warrant issued by a 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.
Warrant of Arrest
An arrest warrant can be issued for a suspect by a justice of the peace if an information in writing is laid before them that a person has committed or is suspected of having committed an offence (s. 1(3) of the 1980 Act). Such warrants can only be issued for persons aged 18 or over if the offence the warrant relates to is an indictable offence or is punishable with imprisonment or the person’s address is not sufficiently established for a summons or written charge and requisition to be served on him/her (s. 1(4)).
In relation to witnesses, an arrest warrant may be issued by a justice of the peace where they are satisfied that it is in the interests of justice to secure the attendance of a person who could give material evidence or produce any document or thing likely to be material evidence. However, a warrant may only be issued where evidence is given on oath that a summons would not procure the attendance of the person (s. 97(2)), or that the person, with no just excuse, has failed to attend court in response to a summons (s. 97(3)).
Execution of Warrants
Certain warrants issued by a magistrates’ court (arrest, commitment, detention, distress or in connection with the enforcement of a fine or other order) may be executed anywhere in England and Wales by a civilian enforcement officer (s. 125A) or by an approved enforcement agency (s. 125B). In either case, the person executing the warrant must, if the defendant asks, show a written statement indicating: that person’s name; the authority or agency by which that person is employed or in which that person is a director or partner; that that person is authorised to execute warrants; and, where s. 125B applies, that the agency is registered as one approved by the Lord Chancellor. A warrant to which s. 125A applies may be executed by any person entitled to execute it even though it is not in that person’s possession at the time (s. 125D).
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. 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 (sch. 4A to the 1980 Act).
- Rule 13.4(3) provides that a warrant for detention or imprisonment must include such an indication of the defendant’s physical and mental health as may be needed to alert those to whom the warrant is directed: (a) to any vulnerability of the defendant; and (b) to any risk to others that may be posed by the defendant.
The Criminal Procedure Rules 2020, r. 13.5(3) states that a person who executes a warrant of arrest requiring the defendant to be released on bail must make a record of:
- the defendant’s name;
- the reason for the arrest;
- the defendant’s release on bail; and
- when and where the warrant requires the defendant to attend court; and
serve the record on the defendant and the court officer.
Other types of warrants that may be executed by a constable are listed in s. 125D(3) of the 1980 Act as a warrant under the:
Armed Forces Act 2006; Tribunals, Courts and Enforcement Act 2007 (control of goods); Family Law Act 1996 (failure to comply with occupation order or non-molestation order); Crime and Disorder Act 1998 (unwilling witnesses); and Powers of Criminal Courts (Sentencing) Act 2000 (offenders referred to court by youth offender panel).
Police and Criminal Evidence Act 1984, s. 28
Where a person is arrested by a constable under warrant, they must be informed of the reason for their arrest and the fact that the constable is acting under warrant.
Disclosure of Information for Enforcing Warrants
The disclosure order may require that basic personal information (name, date of birth, national insurance number and address or addresses) held by a relevant public authority be supplied by that authority to the court for the purpose of facilitating the enforcement of a s. 125A(1) warrant which is so specified (s. 125C(1)).
The information supplied for the purpose of facilitating the enforcement of a s. 125A(1) warrant may be supplied to any person entitled to execute the warrant; any employee of a body or person who, for the purposes of s. 125B, is an approved enforcement agency in relation to the warrant; or any justices’ clerk or other person appointed under s. 2(1) of the Courts Act 2003 (s. 125C(3)).
Under s. 125C(4) it is an offence for a person to intentionally or recklessly disclose information supplied to him/her under this section otherwise than as permitted by subs. (3), or use information so supplied otherwise than for the purpose of facilitating the enforcement of the s. 125A(1) warrant concerned. However, it is not an offence to disclose any information in accordance with any enactment or order of a court or for the purposes of any proceedings before a court, or to disclose any information which has previously been lawfully disclosed to the public (s. 125C(5)).
A ‘relevant public authority’
Means a Minister of the Crown, government department, local authority or chief officer of police specified in an order made by the Lord Chancellor (s. 125C(2)).
Execution of Warrants throughout the United Kingdom
In addition to a warrant for the arrest of a person charged with an offence, this section also relates to: (a) a warrant of commitment and a warrant to arrest a witness issued in England, Wales or Northern Ireland; and (b) a warrant for committal, a warrant to imprison (or apprehend and imprison) and a warrant to arrest a witness issued in Scotland. In addition, the section also applies to a warrant for the arrest of an offender referred back to court by a youth offender panel (sch. 1, para. 3(2) to the Powers of Criminal Courts (Sentencing) Act 2000), issued in England and Wales.
Section 38A of the Criminal Law Act 1977 provides for the cross-border execution of Scottish commitment warrants for non-payment of fines, and s. 38B contains similar provisions for such warrants being executed between England, Wales and Northern Ireland.
The Indictable Offences Act 1848, s. 13 provides that warrants from the Isle of Man and the Channel Islands may be executed in England and Wales where they have been endorsed by a justice of the peace.
