Termination of Proceedings
Consultation
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 in the section, but an early decision is especially important if the defendant is in custody.
To assist in ensuring speed and consistency, notices and letters have been created which should always be used when communicating with the police, courts, prison (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. <Refer to NFR/DN.1 - 9 inclusive, in National Forms Register>
Save in exceptional circumstances, the police should always be consulted before the termination of a case, whichever method of termination is to be used. It provides an opportunity for the police to provide additional information, which may affect the decision: for example, additional witness statements which resolve evidential problems. <Refer to NFR/DP.1 form in National Forms Register> Equally, there may be background information not included on the file, which has 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 afterwards, both the reason why the decision was made and why it was not possible to consult. 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 lawyer will inform the victim of that decision. <Refer to Care and Treatment of Victims and Witnesses, elsewhere in this guidance>
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;
- in accordance with local agreements.
The police should be notified of the intention to discontinue, explaining the reasons and allowing 4 working days where possible, for a reply but leaving sufficient time to send a notice of discontinuance to the defendant and court prior to the hearing.
Levels 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 which are set out in the sections dealing with those offences.
Magistrates' Courts
Methods of Termination
There are three methods of terminating proceedings in the magistrates' court. The first is by the use of the power in section 23 Prosecution of Offences Act 1985 ('s.23'). The second is by applying to withdraw the summons or charge and the third is by offering no evidence in court.
Discontinuance
Discontinuance under s.23 can take place at any time until the magistrates begin to hear evidence in a trial. 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 later.
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 you make it clear that the proceedings are continuing on other charges.
Revival of Proceedings - Prosecution
As a general rule, a decision to terminate proceedings on the ground of public interest is final. Only in exceptional cases is it appropriate to re-institute proceedings terminated on public interest grounds. On the other hand, 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 Reinstitution of Proceedings, elsewhere in this Guidance>
Revival of Proceedings - Defence
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. 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.
Procedure
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. < NFR/DP.1 as appropriate>
Notifying the Court
The notice should state:
- the effective date of discontinuance
- the offences you are discontinuing
- the offences which are to continue, if any, and the date of hearing for those matters
- 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 which apply to the terminated proceedings. It will avoid any misunderstanding if the police are also reminded that the bail conditions no longer exist. 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. <NFR/DP.1 form>
If there is a Bench Warrant issued by the court in respect of proceedings discontinued, ask the police to return the warrant to the court.
Ensure that witnesses or relatives are advised of the termination of proceedings, so that they do not attend court unnecessarily.
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, use the appropriate option. 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. <NFR/DN.6 form>
Very occasionally a defendant is charged with an offence by the police and the court have not been told of the charge at the time you decide to discontinue. In these situations it is appropriate to send a written notice to the defendant only. There is no right to the revival of proceedings by the defendant, and no right to the defendant's costs. The two paragraphs dealing with those matters in the defendant's notice can therefore be deleted.
Notifying the Prison - Defendants 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. <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, who hold 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 he is charged
- the court date and location
- the offences which are being discontinued
- whether any offences remain outstanding
The prison may wish to telephone back to confirm the identity of the caller and after checking 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.
Notifying Co-Defendants
Discontinuance against one person may significantly affect the co-defendant's position. Where you discontinue a case either wholly or in part against one defendant involved with others, you must inform all the other co-defendants of that fact in writing. Notification should be 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.
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 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 advocate is still of the view that the matter should be abandoned, then no evidence should be offered.
If proceedings are withdrawn, as there has been no adjudication by the court, there is no technical bar to instituting further proceedings for the same offence at a later date. CPS policy on re-institution of proceedings (hypertext link) 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 basically two situations:
- summary proceedings - where the offence is a summary one, or an either way matter which is to be heard in the magistrates court; and
- committal proceedings - involving an either way offence.
In summary proceedings the 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 a 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;
- the defendant receives a custodial sentence in another court.
The point of 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 which 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. See 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. This applies especially to convictions in the defendant's absence. But there is a strict time limit of 28 days, and 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. When it is likely that the proceedings will be re-instated, if, or when, further evidence becomes available, both the court and the defendant should be made aware of that possibility.
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
Nolle Prosequi
At any stage after the indictment has been signed and before a Crown Court judgement, the Attorney General can enter a nolle prosequi. This terminates the proceedings. The power is not subject to judicial control or judicial review. It is most often used in cases where the defendant is physically or mentally unfit to be produced at court and the 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.
Offering no Evidence
In the Crown Court 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 to the clerk at the Crown Court, of the intention to offer no evidence.
The judge has a discretion whether 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 the prosecution decide 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.
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 inform, 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. In practice, the judge usually consents, provided that the defence agrees.
The ability to leave an indictment or counts on the file is often useful under 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.
Useful Links
<NFR/DN.1 form>
<NFR/DN.2 form>
<NFR/DN.3 form>
<NFR/DN.4 form>
<NFR/DN.5 form>
<NFR/DN.6 form>
<NFR/DN.7 form>
<NFR/DN.8 form>
<NFR/DN.9 form>
<NFR/DP.1 form>
<Care and Treatment of Victims & Witnesses, elsewhere in this guidance>
<Re-Institution of Proceedings, elsewhere in this guidance>
S (an infant) v Manchester City Recorder (1971) AC 481
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