Preliminaries to Prosecution

Question 1

The DPP’s duties are listed in s3(2) Prosecution of Offenders Act and include (amongst other duties)…?

(10)

Answer 1

(a) To take over the conduct of all criminal proceedings instituted by or on behalf of a police force, other than ‘specified proceedings’,
(b) To institute and conduct criminal proceedings in any case where it appears to him appropriate to do so either on account of the importance or difficulty of the case or for any other reason.
(c) To take over the conduct of all binding-over proceedings instituted on behalf of a police force.
(d) To take over the conduct of any criminal proceedings instituted by the NCA.
(e) To have the conduct of extradition proceedings (see D31).
(f) To advise police forces on all matters relating to criminal offences.
(g) To appear for the prosecution when directed by the court to do so on various appeals.
(h) To have the conduct of applications for orders under the ABCPA 2014 (criminal behaviour orders), and to apply for discharge or variation of such orders.
(i) To discharge the duties conferred under the POCA 2002,
(j) To discharge such other functions as may from time to time be assigned to him by the A-G.

Question 2

‘Specified proceedings’, namely those listed in the schedule to the Prosecution of Offences Act 1985 (Specified Proceedings) Order 1999 (SI 1999 No. 904), consist of what?

Answer 2

Various road traffic offences,

offences under the POA 1986,

s. 5, criminal damage where the value involved does not exceed £5,000

theft where the offence constitutes low-value shoplifting (see D6.27).

Question 3

TRUE or FALSE. Section 3(2)(a) of the Prosecution of Offences Act 1985 requires the DPP to take over the conduct of all criminal proceedings, except those instituted on behalf of a police force.

Answer 3

FALSE. It requires the DPP to ‘Take over the conduct of all criminal proceedings … instituted on behalf of a police force’.

Question 4

TRUE or FALSE. The CPS is instructed by the police.

Answer 4

FALSE. The CPS is not instructed by the police — acting on behalf of the DPP it takes over prosecutions begun by the police, and therefore exercises an independent judgment in deciding any legal questions which arise.

Question 5

Do Crown Prosuectors need express instructions from the DPP in order to exercise the DPP’s powers?

Answer 5

No! In Liverpool Crown Court, ex parte Bray [1987] Crim LR 51, it was confirmed that the DPP’s powers may be exercised by Crown Prosecutors acting within the general authority delegated to them and without express instructions from the DPP.

Thus, the DPP’s powers to take over the conduct of privately commenced prosecutions and to serve a notice discontinuing a prosecution are, in practice, exercised by Crown Prosecutors rather than the DPP personally.

Question 6

What does section 5(1) Prosecution of Offenders Act 1985 stipulate?

Answer 6

It empowers the DPP to appoint persons who are not members of the Service to institute or take over the conduct of such criminal proceedings.

Such a person will have all the powers of a Crown Prosecutor, but has to exercise those powers subject to any instructions.

Question 7

Does the DPP have complete discretion over their powers under s5(1) POA 1985 to assign cases?

Answer 7

Yes: no fetter on the circumstances in which the DPP may assign cases to non-CPS personnel.

Question 8

What does section 7A Prosecution of Offences Act 1985 stipulate?

(clue is in the ‘A’)

Answer 8

It gives the DPP the power to appoint staff who are not legally qualified (‘associate prosecutors’).

Question 9

True or false. ‘Associate prosecutors’ can conduct trials for indictable offences.

Answer 9

False. They may conduct trials but only where the offence in question is a non-imprisonable summary offence.

Question 10

The first appearance of an accused before a magistrates’ court may be secured in a number of different ways: (4)

Answer 10

(a) Charged by police
(b) Arrested, bailed, return to station, charge
(c) written charge and requisition (with or without prior arrest)
(d) Apply to Mags for a summons

Question 11

The CJA 2003, s. 29, applies only to prosecutions brought by a ‘relevant prosecutor’. By virtue of s. 29(5), s. 29 applies to prosecutions brought by the following (or by someone authorised to institute criminal proceedings on their behalf):

Answer 11

(a) a police force;
(b) the Director of the SFO;
(c) the DPP (and therefore the CPS);
(d) the Director General of the NCA;
(e) the A-G (not yet in force);
(f) a person specified by the Secretary of State in an order under the CJA 2003, s. 29(5)(h).

Question 12

What does s.29(1)-(3) CJA 2003 stipulate?

(3) components

Answer 12

Under s. 29(1), a relevant prosecutro may institute criminal proceedings against a person by issuing a ‘written charge’.

Under s. 29(2), a ‘requisition’ must be issued alongside, requiring D to appear before a magistrates’ court to answer the written charge.

The written charge and requisition must be served on the accused and a copy of both must be served on the court named in the requisition (s. 29(3)).

Question 13

True or False. The written requisition procedure is available for private prosecutions (where the prosecutor is not a relevant prosecutors as per s29(5) CJA).

Answer 13

False. The written charge and requisition procedure is not available in the case of private prosecutions. These must be commenced by making an application to the magistrates’ court for the issue of a summons (‘laying information’).

Question 14

How can private prosecutor apply to court to issue a summons?

By virtue of CrimPR 7.2(3), which two components must their application include?

Answer 14

Either in writing or by presenting orally to the court.

The application must set out:

• the allegation(s) made by the applicant;
• if there is a time limit for prosecution of the offence(s), demonstrate that the application is made in time.

Question 15

MCA 1980 s1(1) provides that once information is laid before the justice that a person has, or is suspected of having, committed an offence, the justice may issue:

Answer 15

(a) a summons directed to that person requiring him to appear before a magistrates’ court to answer the information, or
(b) a warrant to arrest that person and bring him before a magistrates’ court.

Question 16

CrimPR 7.3(1) provides that an application for a summons (or for an arrest warrant) or a written charge must contain:

(tip: think of civi liitigation…)

Answer 16

(a) a statement of the offence which describes the offence ‘in ordinary language’ and (if the offence is created by statute) identifies the legislation that creates it; and
(b) sufficient particulars of the conduct constituting the commission of the offence to make clear what the prosecutor alleges against the defendant.

Question 17

Under r. 7.4(3) (see Supplement, R-70), a requisition or summons must contain: (4)

(tip: DOCA)

Answer 17

A notice setting out when and where the accused must attend the court

It must specify each offence in respect of which it has been issued.

A summons must identify the issuing court.

A requisition must identify the person under whose authority it is issued.

Question 18

Is there a time limit on the Magistrates’ court for trying an accused for a summary offence?

Answer 18

Yes. They may not try unless the application for a summons was served on the magistrates’ court within six months of the time when the offence was allegedly committed (MCA 1980, s. 127(1))

(Section 127(2)(a) makes it clear that s. 127(1) does not apply to indictable offences or either-way offences.)

Question 19

Section 127 MCA 1980 refers to the laying of an information (i.e. applying for a summons) but does not make it clear when time starts to run in the case of proceedings brought by the written charge and requisition procedure established by the CJA 2003, s. 29. When does time start to run?

Answer 19

Brown v DPP [2019] EWHC 798 held that, where a prosecution is initiated by the written charge and requisition process, the written charge must be issued within the six months permitted by s. 127.

If ‘there is an unjustified but significant delay before such a written charge is served, that should not and cannot go without remedy. The remedy is abuse of process.’ Both issue and service should be completed before six months from the relevant offence.

Question 20

Is there a time limit for proceedings to be started for triable-either-way offences?

Answer 20

There is no time-limit unless it is one of the exceptional offences for which there is statutory limitation on the time for taking proceedings on indictment, in which case that limitation applies equally to summary proceedings (s. 127(2) and (4)).

(Even where a statute creates an either-way offence and then appears to impose a time-limit in respect of summary proceedings (but not proceedings on indictment), the limitation is overridden by the MCA 1980, s. 127(2).

As such, the limitation granted for indictment proccedings will always apply equally to summary proceedings)