Updated 26 April 2010
- Levels of decision-making
- Magistrates' courts: Methods of termination
- The Crown Court: Methods of termination
- Court procedure on the death of a defendant
- Relevant links
The responsibility for continuing with proceedings lies with the CPS. If after reviewing a case fully in accordance with the Code for Crown Prosecutors (the Code) the lawyer considers that the proceedings should not continue, the case should be terminated at the earliest possible opportunity. There are several methods by which proceedings may be terminated, as outlined below, but an early decision is especially important if the defendant is in custody.
To ensure speed and consistency, notices and letters have been created that should always be used when communicating with the police, courts, Prison Service (where appropriate), defendants and their solicitors. These forms cover notice in advance of discontinuance (whether all or part of the proceedings) as well as information after such action has been taken (see National Forms Register: forms NFR/DN.1 - 9 inclusive).
Prosecutors must continuously review each case and take account of any change in circumstances (see paragraph 3.6 of the Code for Crown Prosecutors). Therefore, it may sometimes be appropriate to change the decision of the original charging prosecutor. For example, there may be significant changes or developments in the evidence (e.g., a witness refusing to give evidence) or changes to the public interest (e.g., the defendant has had a lengthy period of imprisonment).
Where on a subsequent review a prosecutor comes to the view that the case should be discontinued because the original decision was fundamentally wrong, it is a matter of good practice to discuss the decision with a Unit Head. However, this consultation should only take place where it is practicable, and every effort should be made to ensure that the proceedings are not delayed (e.g., through adjournments at court to seek confirmation of a decision).
Save in exceptional circumstances, the police should always be consulted before the termination of a case, no matter which method of termination is to be used. This provides an opportunity for the police to provide additional information, which may affect the prosecutor's decision: for example, additional witness statements which resolve evidential problems (refer to NFR/DP.1 form in National Forms Register). Equally, the police may have background information not included on the file that may have a bearing on the public interest.
If for any reason it is not possible to consult the police before the case is terminated, the police should be told both the reason why the decision was made and why it was not possible to consult after the fact. It should be noted here that under the CPS policy on direct communication with victims, where a case is terminated or where there has been a substantial alteration to the charges, the prosecutor must inform the victim of that decision. (For further information, refer to the legal guidance Care and Treatment of Vicitms and Witnesses).
Consultation with the police should always take place if all or part of a case is to be terminated, with the following exceptions:
- the acceptance of pleas where charges were preferred in the alternative;
- minor adjustments which do not go to the substance of the case, and which are unlikely to affect disposal or penalty;
- where local agreements specify that consultation is unnecessary.
The police should be notified of the intention to discontinue, explaining the reasons and allowing 4 working days for a reply, where possible. However, sufficient time must be left to send a notice of discontinuance to the defendant and court prior to the hearing.
Where possible, the speediest method of communicating with the police should be adopted, whether that be by telephone (conversation must be noted on file) e-mail or fax.
Prosecutors should also be aware that decisions to discontinue prosecutions are susceptible to judicial review (see legal guidance on judicial review of prosecutorial decisions for further information).
Level of decision-making
The decision to terminate proceedings is a serious step and must be taken by a prosecutor at an appropriate level, taking into account the criteria and levels of decision-making for particular offences, as set out in the sections dealing with those offences.
Magistrates' courts: Methods of termination
Prosecutors can terminate proceedings in the magistrates' court by:
1. using the power in section 23, Prosecution of Offences Act 1985 ('s.23');
2. applying to withdraw the summons or charge; or
3. offering no evidence in court.
In certain circumstances, the prosecution can terminate proceedings after the defendant has been convicted or has pleaded guilty.
Discontinuance under s.23 can take place at any time until the magistrates begin to hear evidence in a trial, or before the accused has been committed or sent for trial under section 51 Crime and Disorder Act 1998. Timely termination of proceedings is in the interests of justice. The power to discontinue enables the CPS to terminate proceedings as soon as practicable after the decision is taken and avoids the need for a court hearing or the attendance of the parties. It also enables a defendant in custody to be released immediately without the need to wait until the next hearing. For these reasons, where it is intended to discontinue the entire proceedings, the preferred method of termination is normally discontinuance under s.23. The procedure is set out below.
A distinction should be drawn between termination of the proceedings as a whole and termination of part of the proceedings. If it is intended to terminate some charges and not others, discontinuance under s.23 may not be appropriate. Unless it is very carefully handled, partial discontinuance can cause confusion and uncertainty, particularly if alternative charges are to be preferred. But the s.23 procedure may be appropriate if the offence to be discontinued is the more serious one as long as the prosecutor makes it clear that the proceedings are continuing on other charges.
Discontinuance under section 23 of the 1985 Act is achieved by sending written notice of the decision to the court and the defendant or his solicitor. The decision to discontinue should also be confirmed in writing to the police and a copy of the notice sent to the court should also be sent to the police. Discontinuance notices should be dispatched within one working day of the decision being confirmed. If the defendant is in custody, the notice should be faxed to the prison governor as soon as the decision is taken (refer to the National Forms Register, forms NFR/DN.1 - 9 inclusive, and NFR/DP.1 as appropriate).
Notifying the court
The notice should state:
- the effective date of discontinuance;
- the offences to be discontinued;
- the offences that are to continue, if any, and the date of hearing for those matters; and
- the reasons why the case has been discontinued.
The court has a duty to inform sureties and persons responsible for ensuring compliance with bail conditions that the proceedings have been discontinued. Discontinuance automatically stops any bail conditions that apply to the terminated proceedings. The police should also be reminded that the bail conditions no longer exist, in order to avoid any misunderstanding. This may apply particularly if there is a duty to report to a police station. Failure to do so may be acted upon before the court has confirmed discontinuance.
Notifying the police
The notice should be sent to the police with a copy of the discontinuance notice sent to the court. If there has been very full consultation before discontinuance and the police are aware of the decision, the details can be brief (see NFR/DP.1 form).
If a Bench Warrant has been issued by the court in respect of discontinued proceedings, prosecutors should ask the police to return the warrant to the court.
Notifying victims and witnesses
Under the Direct Communication with Victims and Witnesses Scheme (which reflects our commitment in the Code of Practice for Victims of Crime), the reviewing lawyer should ensure that witnesses and victims (or their relatives) are advised of, and given an explanation for, the termination of proceedings. See Direct Communication with Victims and Witnesses for further detail.
Notifying the defendant
The notice to be sent to the defendant needs to identify the reason why the case is being discontinued. This should be the same general reason as the one given to the court.
If the case is being discontinued for lack of evidence, and there is a possibility that the case might be revived, prosecutors must ensure that they make clear that decisions to discontinue may be reconsidered (see NFR/DN.6 form). Situations where this may arise are where further evidence is anticipated or promised at a later date, but where it has not materialised at the time of discontinuance.
Very occasionally a defendant is charged with an offence by the police and the court has not been told of the charge at the time the CPS decides to discontinue. In these situations it is appropriate to send a written notice to the defendant only. The defendant has no right to revive the proceedings, and no right to his/her costs. The two paragraphs dealing with those matters in the defendant's notice can therefore be deleted.
Notifying the prison (where the defendant is in custody)
If the defendant is in custody, the prison should be informed as soon as possible of the discontinuance. This is particularly important where the only matters for which the prisoner is detained are to be abandoned. Unless the defendant is held in custody for other matters, s/he is entitled to immediate release (see NFR/DN.9 form).
Informing the prison where the defendant is detained should be done initially by telephone and confirmed in writing by letter or fax. It is not usually necessary to telephone if only some of the offences for which the defendant is remanded in custody are being discontinued.
The usual point of contact by telephone is the prison discipline office, which holds prisoners' records. The prison will need to know the following:
- the full name and date of birth of the prisoner;
- the prison number (if known);
- the offences for which s/he is charged;
- the court date and location;
- the offences that are being discontinued; and
- whether any offences remain outstanding.
The prison may wish to telephone back to confirm the identity of the caller once they have checked their records as to what offences they hold the prisoner upon. You should be prepared to give your telephone number and to help with the information they will need.
Written confirmation of the information given in the telephone conversation should be sent to the prison immediately afterwards. Usually a faxed letter with a copy of the defendant's notice of discontinuance will suffice.
Discontinuance against one person may significantly affect the co-defendant's position. Where prosecutors discontinue a case either wholly or in part against one defendant involved with others, they must inform all co-defendants of that fact in writing. Notification should be given at the same time as the discontinuance notice is sent.
The letter should state which offences are to be terminated, and which are to continue. No reason for the decision should or need be given. If represented, the letter should be sent to the co-defendant's solicitors.
Revival of proceedings
As a general rule, a decision to terminate proceedings on the ground of public interest is final. It is only appropriate to re-institute proceedings terminated on public interest grounds in exceptional cases. However, when the decision has been taken on the basis of insufficient evidence, it is open to the prosecution to re-institute the proceedings if further evidence comes to light. For further information about the principles to be applied and the levels of decision-making, refer to the legal guidance on reinstitution of proceedings.
The defendant has a right to request the revival of proceedings which have been discontinued under s.23. S/he must make the request within 35 days of the notice being sent to the court (Criminal Procedure Rules 2005, paragraph 8.1). The most likely reason for a revival notice is the defendant's wish to be formally acquitted on the offence or offences charged.
The effect of the revival request is to turn the clock back so that the proceedings continue as if no notice of discontinuance had been given, but it does not affect the termination of orders regarding bail or custody. If the defendant has been released from custody following the discontinuance of the case under s.23, s/he cannot be detained if the proceedings are revived.
Unless circumstances have radically changed since the notice of discontinuance was issued, the reviewing lawyer will formally offer no evidence in court.
Withdrawal of proceedings
Offences can be withdrawn by the prosecutor at any time before an adjudication by the court. Applications to withdraw must be made before a plea has been taken. If proceedings are withdrawn in anticipation that they may be re-instituted if additional evidence comes to light, this must be made clear in court.
Leave to withdraw is required. The prosecuting advocate will need to give sufficient reasons to satisfy the court that the application is a proper one. The defendant is entitled to make representations as to whether s/he should be entitled to an acquittal.
The court may refuse leave to withdraw the proceedings. If this occurs, and the prosecuting advocate is still of the view that the matter should be abandoned, then no evidence should be offered.
If proceedings are withdrawn, there is no technical bar to instituting further proceedings for the same offence at a later date. CPS policy on the re-institution of proceedings will apply to any such decision.
Offering no evidence
In the magistrates' court the effect of offering no evidence depends on the type of offence and whether the magistrates have accepted jurisdiction. There are two situations:
- summary proceedings - where the offence is a summary one, or an either way matter that is to be heard in the magistrates court; and
- committal proceedings - involving an either way offence.
In summary proceedings, the prosecuting advocate may offer no evidence at any stage before the close of the prosecution case. The result will be the acquittal of the defendant. The same charge or charges cannot be re-instituted. It is not clear whether leave is required but in practice the CPS does not ask for leave to offer no evidence.
In committal proceedings, no evidence can be offered at any stage before the moment of committal. Leave to offer no evidence is not required. The effect will be the defendant's discharge under Section 6, Magistrates' Courts Act 1980. This is not an acquittal and proceedings could be started again if appropriate.
After conviction or plea of guilty
Normally, if a defendant is convicted of an offence or pleads guilty, s/he must be sentenced by the court. But there will be a few occasions when, on the ground of public policy, it seems appropriate to terminate proceedings after conviction or following a plea of guilty to a minor offence but before sentence is passed. This may arise, for example, if:
- the defendant becomes gravely ill; or
- the defendant receives a custodial sentence in another court.
The reason for terminating proceedings at that stage is usually to avoid the hardship or expense of bringing the defendant back before the court to receive a sentence that is likely to be irrelevant in the light of the changed circumstances.
In such circumstances, either the court can be asked to direct a change of plea followed by the prosecutor terminating the case, or the court can be invited to impose an absolute discharge. The first option is preferable because an attempt by the prosecutor to intervene in the sentencing process could be misinterpreted.
The magistrates' court has a common law power to permit a change of plea from guilty to not guilty at any time before the final disposal of the case (S (an infant) v Manchester City Recorder (1971) AC 481). This power is discretionary and is usually instigated by defence application.
There does not seem to be any reason why the prosecution should not invite the court to amend the plea to not guilty with a view to offering no evidence. The advocate will need to explain to the court why it is not considered appropriate to let the case take its usual course. If the defendant is not represented, the prosecution advocate can ask the court to use its powers of its own accord. The defendant should be made aware of the intention of the prosecutor. Once the plea is changed, the prosecution can be terminated.
There may also be rare occasions when it will be appropriate to terminate a prosecution, after a guilty plea or conviction, on evidential grounds. The need to do so will arise when it comes to light for the first time, after plea, that the prosecution evidence is seriously flawed. Normally, the application to change the plea will be made with the defendant present at court. If the original plea was not guilty and the defendant has been found guilty by the magistrates, it may be possible to re-open the case under Section 142 Magistrates' Courts Act 1980 to rectify a mistake, if the magistrates believe it is in the interests of justice to do so. This applies particularly to convictions in the defendant's absence. The magistrates may decline to re-open the matter.
In all cases when termination of proceedings takes place at court, a full note should be made on the file of what was said to the court and the defendant. Any decisions made should similarly be noted.
If the reason for terminating the proceedings is the insufficiency of the evidence provided to the CPS at that date, this must be made clear to the court and the defendant. If it is likely that the proceedings will be re-instated if further evidence becomes available, both the court and the defendant should be informed.
If alternative charges are being preferred at court, it is prudent to wait until after the new matters are put, before abandoning the old charges entirely. Similarly, if the prosecution is proceeding on only one or some of a number of charges, the court should be invited not to dismiss the outstanding charge(s) until after the trial on the other(s).
The Crown Court: Methods of termination
Prosecutors can terminate proceedings in the Crown Court by:
1. entering a nolle prosequi;
2. discontinuance under section 23A, Prosecution of Offences Act 1985;
3. offering no evidence in court;
4. leaving an indictment or counts on file; or
5. applying for a motion to quash the indictment.
At any stage after the indictment has been signed and before a Crown Court judgment, the Attorney General can enter a nolle prosequi. This terminates the proceedings, but it does not operate as a bar or discharge or an acquittal on the merits (so the defendant can be reindicted). The power is not subject to any control by the courts. It is most often used in cases where the defendant is physically or mentally unfit to be produced at court and the defendant's incapacity is likely to be permanent.
Given the various methods already available to the prosecution to terminate proceedings at all stages, it is unlikely that the CPS will need to apply for a nolle prosequi.
If it becomes apparent that the defence intend to make an application to the Attorney General and they agree to defer it while you review the case, you should invite them to provide any additional material to you. Often, that information will be known only to the defence and may not have been available to the prosecution at the time of earlier reviews. Where medical reports are known to exist, the defence should be invited to reveal them for consideration.
Discontinuance under section 23A, Prosecution of Offences Act 1985
Under section 23A of the Prosecution of Offences Act 1985 (POA 1985), the CPS can give notice after the accused has been sent for trial under section 51 of the Crime and Disorder Act 1998 but before the indictment is preferred, that the proceedings are to be discontinued. Reasons must be given for not wanting the proceedings to continue, and the accused must be informed of the notice.
The giving of notice under section 23A does not prevent the institution of fresh proceedings in respect of the same offence.
Offering no evidence
In the Crown Court (section 23A POA 1985 aside) the only method by which the prosecutor can terminate proceedings altogether is to offer no evidence. This applies both to individual counts and to the whole indictment. Advance notice in writing should always be given of the intention to offer no evidence to the clerk at the Crown Court.
The judge can choose whether or not to accept the prosecution's decision, and counsel may be reluctant to adopt a course not approved by the judge. But in practice, a court cannot compel the prosecution to proceed if it decides to offer no evidence.
If no evidence is offered, the judge will order a verdict of not guilty. Where a jury is in charge, it will be asked to return a formal verdict of not guilty. If a jury has not been sworn, the judge will enter the verdict under section 17 Criminal Justice Act 1967. This effectively concludes the proceedings and fresh proceedings cannot be started; the verdict has the same effect as if the defendant had been tried and acquitted in the verdict of a jury or a court.
If proceedings are abandoned in the Crown Court on public interest grounds following acceptable pleas to other counts or indictments, or if an indictment or counts have been left on the file, the police should be informed within two 2 days.
Leaving an indictment or counts on the file
The effect of leaving an indictment or a count to lie on the file is that there can be no further proceedings against the defendant on those matters, without the leave of the Crown Court or Court of Appeal. There is no verdict, so the proceedings are not formally terminated.
The consent of the judge is required to leave an indictment or counts to lie on the file. In practice, the judge usually consents, provided that the defence agrees.
The ability to do so is particularly useful in the following circumstances:
- where the defendant has pleaded guilty or has been convicted of other counts in the same indictment; or
- the defendant has pleaded guilty or has been convicted on counts on another indictment; and
- continuation of proceedings on remaining matters is no longer needed in the public interest.
Motion to quash an indictment
This type of application is usually made by the defence, but it can be used by the prosecution to abandon proceedings in which the indictment is defective and it is not possible to cure the defect by amendment. To revive the proceedings, fresh proceedings have to be started in the magistrates' court, or if the defect was technical, by obtaining a voluntary bill of indictment.
Court Procedure on the death of a defendant
In magistrates courts the individual court should be contacted to see what their preference is. The usual practice is that upon provision of the proof of the death the clerk enters on the register that the defendant has died and that terminates the proceedings.
In the Crown Court formal evidence of death should be given and this can be done through a police officer who identifies the dead body of the defendant as the same person named in the relevant indictment. However in practice this is rare and a certified copy of a death certificate is sufficient.
Prosecutors should inform the court of a defendant death and produce a certified copy of his death certificate. The court should be invited to mark the indictment accordingly and an example of the format can be found in Archbold 3-212 where HHJ Chapman directed the form of endorsement on the Indictment.
Legal guidance on Reinstitution of Proceedings.