Preliminaries to prosecution. Methods of commencing criminal proceedings and timelimits Flashcards
Procedure for Starting a Prosecution and Securing Presence of Accused
The first appearance of an accused before a magistrates’ court may be secured in a number of different ways:
(a) The accused may be arrested and, after the police have sought advice from the CPS, charged by the police (the details of the offence(s) will appear on a charge sheet).
(b) The accused may be arrested and then granted police bail while the CPS decide whether there is sufficient evidence to justify a charge; the CPS may then start a prosecution by using the ‘written charge and requisition’ procedure
(c) The accused may be arrested and then be granted police bail, subject to a requirement of returning to the police station on a specified date; during the intervening period the CPS decide whether there is sufficient evidence to justify a charge and, if so, when the accused returns to the police station, the police will charge the accused with the offence(s) specified by the CPS.
(d) The accused may be served with a written charge and requisition without first having been arrested.
(e) An application may be made to a magistrates’ court for the issue of a summons (or an arrest warrant) requiring the accused to attend before it (this process is sometimes referred to as ‘laying an information’). A prosecutor who is not a ‘relevant prosecutor’ for these purposes cannot use the written charge and requisition process but must instead apply for the issue of a summons by the magistrates’ court.
Written Charge and Requisition Procedure
The CJA 2003, s. 29, applies only to prosecutions brought by a ‘relevant prosecutor’.
s. 29 applies to prosecutions brought by a number of bodies or individuals, including the police, the CPS, the SFO, the NCA, and the A-G, as well as those specified by the Secretary of State in an order.
Those so designated as ‘relevant prosecutors’ include various government departments, the Driver and Vehicle Standards Agency, Transport for London, the Environment Agency, specified local authorities (including county and district councils, and London borough councils), railway operators (for the purpose of prosecuting a railway offence), and the TV licensing authority.
A prosecutor to whom these provisions apply may institute criminal proceedings against a person by issuing a ‘written charge’, which charges the person with an offence.
Where the prosecutor issues a written charge, a ‘requisition’ must be issued at the same time;
this requires the accused 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
Applying for the Issue of a Summons
The Application (‘Information’)
The written charge and requisition procedure is not available where the prosecutor is not a ‘relevant prosecutor’.
These prosecutions must be commenced by making an application to the magistrates’ court for the issue of a summons.
A prosecutor who wants the court to issue a summons must either serve a written application on the court, or present an application orally to the court (but with a written record of the allegation(s) made by the prosecutor).
The application must (a) set out the allegation(s) made by the applicant and
(b) if there is a time-limit for prosecution of the offence(s), demonstrate that the application is made in time.
To satisfy the latter requirement, ‘there must at least be a reference to the applicable time limit, otherwise it is not “demonstrated” that the application is made in time’; this suggests that the time-limit must be specifically referred to, and that there must be a statement that the present proceedings are issued in compliance with that time-limit.
It was not sufficient that it was merely apparent from the application (setting out the date of the alleged offence and the date of the application) that it is in time
The Summons
(1) On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justice may issue—
(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.
A justices’ clerk (or an assistant clerk who has been specifically authorised by the justices’ clerk for that purpose) may issue a summons but not a warrant.
Content of the Written Charge or Application for a Summons
(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 (including the value of any damage or theft alleged where that value is known and where it affects the exercise of the court’s powers, as will be the case with criminal damage where the value involved does not exceed £5,000, and shoplifting where the value involved does not exceed £200.
Where a number of incidents, taken together, amount to a course of conduct (having regard to the time, place or purpose of commission), those incidents may be included in the allegation (Moreover, a single document may contain more than one charge).
A requisition or summons must contain a notice setting out when and where the accused must attend the court, and must specify each offence in respect of which it has been issued. Additionally, a summons must identify the issuing court, and a requisition must identify the person under whose authority it is issued.
Other than the above there is little guidance on how the application should be drafted.
Time-Limit for Starting Proceedings for Summary Offences
A magistrates’ court may not try an accused for a summary offence 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)). s. 127(1) does not apply to indictable offences (which term includes either way offences)
Section 127 does not make it clear when time starts to run in the case of proceedings brought by the written charge and requisition procedure.
‘the written charge can be regarded as issued only when the document comprising the written charge is completed, with all relevant details and in the form needed for service. Provided that is done within six months of the relevant offence, the written charge will have been issued in time’
As a matter of practice, both issue and service should be completed before six months from the relevant offence, ‘so as to put paid to any suggestion of such unwarranted delay’
if, following issue within the permitted time-limit, ‘there is an inordinate or unwarranted or 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’
Where there is uncertainty as to whether proceedings were started in time, the question should be determined according to the criminal standard of proof and the magistrates should decline to hear the matter unless satisfied so that they are sure that the proceedings were commenced within the statutory time-limit.
Either way offences, there is no time-limit within which proceedings must be started, 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.
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).
