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Termination of Proceedings (Including Discontinuance)

Updated: 27 January 2014 

Principle

The responsibility for continuing with or terminating proceedings lies entirely with the CPS. Prosecutors must continuously review each case and take account of any change in circumstances (see paragraph 3.6 of the Code for Crown Prosecutors).

If the prosecutor considers the proceedings should not continue, the case should be terminated at the earliest possible opportunity. An early decision is especially important if the defendant is in custody.

It may sometimes be appropriate to change the decision of the original charging prosecutor (or of the police where they authorised charge). Where a prosecutor comes to the view that the original decision was fundamentally wrong, it is a matter of good practice to discuss the decision with a Unit Head but every effort should be made to ensure that the proceedings are not delayed.

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.

Prosecutors must be aware that decisions to terminate prosecutions are susceptible to judicial review (see legal guidance on: Appeals - Judicial Review of Prosecutorial Decisions). Accordingly, a full note of the reason for the decision is essential. The more difficult the decision, the more important it is to have a detailed note showing how the evidential  and the public interest stages of the Full Code Test have been applied.

Prosecutors should also note that under the Victims' Right to Review (VRR) scheme, victims have the right to seek a review of a decision to terminate proceedings where the termination results in an end to all proceedings relating to that victim.

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Methods of Termination 

Before Conviction

There are several methods by which proceedings may be terminated prior to conviction.

When termination of proceedings takes place at court, a full note should be made on the file of what was said by each of the parties and the court.

Prosecutors can terminate proceedings in the magistrates' court by:

  • discontinuance - under section 23 Prosecution of Offences Act 1985 ('s23');
  • applying to withdraw the summons or charge; or
  • offering no evidence

Prosecutors can terminate proceedings in the Crown Court by:

  • discontinuance under section 23A Prosecution of Offences Act 1985 ('s23A');
  • offering no evidence in court;
  • leaving an indictment or counts to lie on the file;
  • applying for a motion to quash the indictment; or
  • inviting the Attorney General to enter a nolle prosequi.

After Conviction

It is possible for the prosecutor to terminate proceedings even after conviction, but only if there is a powerful public interest reason for doing so, such as:

  • the defendant has become gravely ill;
  • the defendant has received a significant custodial sentence in another court for another offence; or
  • it has come to light for the first time that the prosecution evidence is seriously flawed.

Termination by the CPS can occur after conviction only if:

  • the court permits a change of plea before sentence is passed;
  • a magistrates' court exercises the power under section 142 Magistrates' Courts Act 1980 to reopen proceedings after conviction and/or sentence;
  • a Crown Court in its appellate function directs the case to be remitted to the magistrates' court for a change of plea;
  • the Court of Appeal directs a venire de novo (see below) for the case to be re-heard in the court below;
  • the Criminal Cases Review Commission refers a case to the Court of Appeal.

Both the magistrates' court and the Crown Court have 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] A.C. 481 HL). This power is discretionary.

A court has no power to allow a plea of guilty to be withdrawn after sentence (R v McNally [1954] 38 Cr.App.R 90) but there are circumstances in which the Crown Court (exercising its appellate function from the magistrates' court) may direct the magistrates' court to permit a change of plea.

The Court of Appeal may direct a venire de novo if it considers that there has been an irregularity of procedure sufficient to warrant that the court below should re-hear the case.

An application for a change of plea would normally be made by the defendant but there does not seem to be any reason why the prosecution should not do so, with a view to then terminating the proceedings.

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Consultation

Victims

The Code for Crown Prosecutors (paragraphs 4.12(c)) deals with the prosecutor's responsibility to consider the views of the victim. Standard 8.1 of the Core Quality Standards also requires prosecutors to take into account any views expressed by the victim about the impact that the offence has had.

In appropriate cases prosecutors should also take into account any views expressed by the victim's family. This could include situations such as homicide or where the victim is a child or an adult who lacks capacity.

Under the Victims' Right to Review (VRR) scheme, victims have the right to seek a review of a decision to terminate proceedings. However, prosecutors should note that the method of termination affects the victim's position and the possible outcomes under the VRR scheme:

  • Following a decision to discontinue or withdraw all proceedings, the victim is entitled to a review with the possibility of reinstitution;
  • Following a decision to offer no evidence in all proceedings, the victim is entitled to a review but with limited redress (no reinstitution possible); and
  • Where proceedings are dismissed for want of prosecution, the victim is not entitled to a review.

Accordingly, it is vitally important that prosecutors consider and choose the method of termination with care.

Where all proceedings are terminated, the victim should be informed of the decision, the reasons for the decision, how they can obtain further information about it and their right to seek a review of the decision. (For further information, refer to the Victims' Right to Review guidance.)

Where some proceedings are terminated but others continue, or there has been a substantial alteration to the charges, the victim should be informed in accordance with the Direct Communication with Victims scheme.

When termination of proceedings takes place at court and the victim is present, prosecutors should take the opportunity to discuss the decision with the victim. Where they are not present, they must be informed of the decision as above. In every case a full note should be made on the file of what was said by each of the parties and the court, and of any conversation held with the victim. 

Police

Consultation with the police should 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.

This provides an opportunity for the police to provide additional information that may affect the prosecutor's decision, such as additional witness statements that resolve evidential problems; or background information not included on the file that may have a bearing on the public interest.

If, exceptionally, it is not possible to consult the police before the case is terminated, they should be told why the decision was made and why it was not possible to consult beforehand.

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Discontinuance

The Power to Discontinue

Timely termination of proceedings is in the interests of justice.

Sections 23 and 23A of the Prosecution of Offences Act 1985 give prosecutors the power to discontinue proceedings without the need to obtain the leave of the court. Discontinuance avoids the need for a court hearing and the unnecessary attendance of the parties. It enables a defendant in custody to be released immediately without the need to wait until the next hearing.

For these reasons, and particularly where it is intended to discontinue the entire proceedings, the preferred method of termination is discontinuance whenever possible.

If it is intended to terminate some charges and not others, discontinuance may not be the most appropriate option. Indeed partial discontinuance can sometimes cause confusion and uncertainty, particularly if alternative charges are to be preferred. The defendant will have to attend court on the outstanding charges in any event.

Where it is intended to substitute or replace a charge (e.g. replacing common assault with ABH) it will be preferable to discontinue the original charge rather than to offer no evidence. This would avoid any potential argument of autrefois acquit. However, prosecutors should note that following R v JFJ [2013] EWCA Crim 569, a 'technical error' to offer no evidence on a summary offence when substituting it with an either way offence, will not result in a finding of autrefois acquit.

The Magistrates' Court

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

The Crown Court

The prosecutor may terminate indictable-only proceedings in the Crown Court by giving notice under section 23A of the Prosecution of Offences Act 1985 that the proceedings are to be discontinued.

This may be done:

  • after the accused has been sent for trial under section 51 of the Crime and Disorder Act 1998; but
  • before the indictment is preferred

The prosecutor must give reasons 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.

Notice of Proposed Discontinuance

The prosecutor should notify the police of the intention to discontinue:

  • using a written notice;
  • explaining the reasons; and
  • setting a date for a reply (as below).

In all cases sufficient time must be left to send a notice of discontinuance to the defendant and court prior to the hearing. Accordingly, the date for reply should be no more than 4 clear working days. In addition, the prosecutor should adopt the speediest method of communicating with the police. This may be by e-mail or by telephone as appropriate.

Where there is limited time available before the hearing (i.e. less than 4 clear working days), the prosecutor should contact the police (by telephone), and seek to agree a reduced timescale for the reply, as appropriate. The prosecutor must also ensure they make a record of the agreed date for reply and/or of any relevant discussions held with the police.

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Notice of discontinuance

Service of notice

Discontinuance under section 23 or 23A of the Prosecution of Offences Act 1985 is effected by the prosecutor sending a written notice of discontinuance.

Notices should be sent within one working day of the decision being confirmed:

  • to the court;
  • to the defendant or the defendant's solicitor
  • to the police.

The notices 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.

If the case is being discontinued for lack of evidence the prosecutor must make it clear if a decision to discontinue may be reconsidered. This may arise, for example, where further evidence is expected but has not yet arrived.

When a case has been discontinued under section 23(4) of the Prosecution of Offences Act 1985, because the court has not been told of the charge at the time of discontinuance, it is appropriate to send a written notice to the defendant only. In these circumstances 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.

Defendants in custody

If the defendant is in custody the prison governor must be notified as soon as the decision is taken so that arrangements can be made if necessary for the release of the defendant.

This is particularly important where the only matters for which the prisoner is detained are to be discontinued. Unless the defendant is held in custody for other matters, s/he is entitled to immediate release.

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 return the call to a recognised official telephone number in order to confirm the identity of the caller.

Written confirmation of the information given in the telephone conversation must be sent to the prison immediately afterwards. Usually a faxed letter with a copy of the defendant's notice of discontinuance will suffice.

Mentally disordered defendants

The prosecutor should make Immediate telephone contact with the relevant Mental Health Casework Section Caseworker in cases in which the defendant:

  • has been transferred to hospital from prison while on remand under section 48 Mental Health Act 1983; or
  • is a restricted patient who is detained under sections 37 and 41 Mental Health Act 1983.

Follow this link for the relevant telephone numbers on the Ministry of Justice website.

The out of office telephone number is the Home Office switchboard: dial 020 7035 4848 and select option 5.

See the legal guidance on mentally disordered defendants elsewhere in legal guidance for further information.

Bail conditions, sureties and warrants

Discontinuance automatically removes any bail conditions that apply to the terminated proceedings. The police should be reminded that the bail conditions no longer exist in order to avoid any arrest for breach of lapsed conditions.

The court has a duty to inform sureties and persons responsible for ensuring compliance with bail conditions that the proceedings have been discontinued.

If a Bench Warrant has been issued by the court in respect of the discontinued proceedings, the prosecutor should ask the police to return the warrant to the court.

Notifying victims and witnesses

The prosecution should ensure that witnesses and victims (or their relatives) are advised of, and given an explanation for, the termination of proceedings. See the legal guidance on the Direct Communication with Victims and Victims' Right to Review schemes for further detail.

Notifying co-defendants

Discontinuance against one person may affect a 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.

Reinstitution of proceedings

The defendant has a right to request the revival of proceedings which have been discontinued in the magistrates' court (unless discontinued under section 23(4) Prosecution of Offences Act 1985 before the court has been informed of the charge).

The most likely reason for a revival notice is the defendant's wish to be formally acquitted on the offence or offences charged.

The defendant must make the request within 35 days of the notice being sent to the court (Criminal Procedure Rules 2005, paragraph 8.1).

The revival request 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 changed significantly since the notice of discontinuance was issued, to the extent that the proceedings should now continue, the prosecution will formally offer no evidence in court.

Prosecution

Sections 23(9) and 23A(5) of the Prosecution of Offences Act 1985 provide that discontinuance does not prevent the institution of fresh proceedings in respect of the same offence.

Fresh proceedings may be commenced if further evidence, sufficient to provide a realistic prospect of conviction, subsequently comes to light.

Proceedings may also be reinstituted following a review under the Victims' Right to Review scheme where the prosecution conclude:

  • the earlier decision was wrong in applying the evidential or public interest stages of the Full Code Test; and
  • that for the maintenance of public confidence, the decision must be reversed. 

Where the proceedings were discontinued on public interest grounds, however, it is appropriate to re-institute proceedings only in exceptional cases.

For further information about the principles to be applied in such cases and the appropriate level at which the decision should be made, refer to the legal guidance on Reconsidering a Prosecution Decision elsewhere in Legal Guidance.

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Withdrawal of Proceedings

Offences can be withdrawn by the prosecutor in the magistrates' court (only) at any time before 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 court has complete discretion whether to grant leave. 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.

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. Refer to the legal guidance on Reconsidering a Prosecution Decision elsewhere in the Legal Guidance.

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. Further proceedings may not then be commenced on the basis that the defendant has previously been acquitted of the same offence ('autrefois acquit').

In all cases when termination of proceedings takes place at court, a full note should be made on the file of what was said by each of the parties and the court.

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Offering No Evidence

The prosecutor may offer no evidence in either magistrates' court or Crown Court proceedings.

Magistrates' court

In the magistrates' court the effect of offering no evidence depends on the type of offence and whether the magistrates have accepted jurisdiction. 

In summary proceedings for a summary or either way matter, the prosecuting advocate may offer no evidence at any stage before the close of the prosecution case. It is not clear whether leave is required but in practice the CPS does not ask for leave to offer no evidence.

The result will be the acquittal of the defendant. The same charge or charges cannot normally be re-instituted and prosecutors should take care to consider the impact of offering no evidence rather than discontinuing proceedings. Of particular importance is that it also affects the victim's position under the Victims' Right to Review Scheme.

Prosecutors should also note that following R v JFJ [2013] EWCA Crim 569, a 'technical error' to offer no evidence on a summary offence when preferring an either way offence will not always result in a finding of autrefois acquit.

Crown Court

If discontinuance under section 23A Prosecution of Offences Act 1985 is not available, 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 the advocate should be clear about the reasons for doing so before adopting a course not approved by the judge. In practice, however, 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 has been sworn, it will be asked to return a formal verdict of not guilty. If the jury has not been sworn, the judge will enter the not guilty 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.

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.

As above, prosecutors should take care to consider the impact of offering no evidence rather than discontinuing proceedings. Of particular importance is that it also affects the victim's position under the Victims' Right to Review scheme.

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Leaving an Indictment or Counts to 'Lie on the File'

Procedure

In the Crown Court the judge has the power to order that entire indictments or some counts on an indictment are ordered to 'lie on the file'. There is no verdict, so the proceedings are not formally terminated. There can be no further proceedings against the defendant on those matters, without the leave of the Crown Court or the Court of Appeal.

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 procedure is particularly useful when:

  • 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
  • convictions for the remaining offences would have no significant impact on the sentence; and
  • it is no longer in the public interest to proceed on the remaining matters.

Rape counts linked to murder

Very careful consideration is required before requesting that rape counts related to a murder are ordered to lie on the file. It can be difficult for some victims' families to understand decisions not to proceed with rape counts in such circumstances.

The prosecutor should follow the CPS guidance on Rape and Sexual Offences concerning consultation with the victim's family and the factors to consider, before making an application to request an order from the judge.

Motion to Quash an Indictment

This procedure is available only in the Crown Court. The application is usually made by the defence. The procedure can be used by the prosecution to abandon (in order to re-commence) proceedings when 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 by obtaining a voluntary bill of indictment.

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Nolle Prosequi - Defence or Prosecution application

Description

At any stage after the indictment has been signed and before a Crown Court judgment, the Attorney General can enter a Nolle Prosequi. 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.

A Nolle Prosequi stops the case and is an indefinite adjournment not an acquittal. 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 indicted again).

The power is not subject to any control by the courts. The Attorney General is answerable to Parliament for the exercise of the power but takes the decision independently of Government as a guardian of the public interest.

In practice the power is used sparingly, usually to prevent oppression (for example because the defendant is seriously ill). Traditionally it has also been used to protect a person to whom an undertaking or immunity has been given. It therefore mirrors the Attorney's power to grant immunity.

A Nolle Prosequi is most likely to be requested by the defence but there are situations in which it is perfectly proper for an application to be made by the prosecution rather than use one of the other methods of termination.

Defence applications

If you become aware that the defence intend to make an application to the Attorney General you should invite them to defer it while you review the case. You should ask them to provide any relevant additional material.

Where medical reports are known to exist, you should invite the defence to reveal them for consideration. Such information will often be known only to the defence and may not have been available to the prosecution at the time of earlier reviews.

When the Attorney receives an application from the defence the Attorney General's Office (AGO) will write to the Chief Crown Prosecutor (CCP) or Deputy Chief Crown Prosecutor (DCCP) of the relevant CPS Area setting out the reasons given by the defence. AGO will also seek the observations of the CCP/DCCP and the prosecution papers (or a detailed outline of the case).

In a number of cases the CCP/DCCP may agree with the defence and this will lead to the termination of the case without the need for a Nolle Prosequi.

Where this is not the case the CCP/DCCP should write to AGO setting out the reasons why a Nolle Prosequi is not appropriate and sending the material that supports this view.

It is important that the CCP/DCCP does this quickly or sets out a strict timetable for the CPS to consider the case further - for example following a further medical report.

The CCP/DCCP should allow the Attorney sufficient time to consider the application before the next hearing. If necessary, make an application for an adjournment.

Where a defendant has applied in person you should provide AGO with the details of any representatives the defendant may have so that AGO may contact them if necessary.

Prosecution applications

A prosecutor may quite properly apply to the AG for a Nolle Prosequi. This would be the correct approach where you have considered terminating the proceedings but:

  • you do not wish termination to lead to an acquittal; or
  • there is no other procedure available for technical or legal reasons

When considering this option the prosecutor should consult their Chief Crown Prosecutor or Deputy Chief Crown Prosecutor (CCP/DCCP). If approved by the CCP/DCCP the prosecutor should initially telephone the Deputy Director of Criminal Law at the Attorney General's Office to discuss the case. (Click here for contact details for AGO).

Then you should follow the general procedure for applying for the consent of the Attorney: see the Legal Guidance on Consents to Prosecute.

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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 to the justices enters on the register that the defendant has died. 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 usually 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.

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