Re-Institution Of Proceedings
Principle
Purpose of Guidance
This guidance gives effect to the Attorney General's undertaking to Parliament of 31.3.1993 <refer to Annex A below in this section> concerning the exercise of The CPS discretion to institute, re institute or continue proceedings after a suspect is informed by the police or CPS of a decision not to prosecute; and to the principles in paragraph 10 Code for Crown Prosecutors.
The undertaking does not affect a decision:
- to offer no evidence at committal or
- to withdraw transfer proceedings because the court refuses an adjournment <refer to Voluntary Bills of indictment elsewhere in this guidance>
All references in this guidance to “re-institution” include institution and continuation of proceedings after a suspect has been informed by the police or The CPS of a decision not to prosecute.
Fundamental Principles
There is a presumption that once a suspect is informed of a decision not to prosecute, s/he is entitled to rely on that decision which should not be revoked. A decision to re-institute proceedings can only be justified in exceptional cases that fall into either of these categories:
- when the decision not to prosecute was taken, and expressed to be taken on the ground that there was insufficient evidence and further significant evidence comes to light <refer to Fresh or further evidence, below in this section> <see section 23(9) Prosecution of Offences Act 1985> for the residual power to re-institute proceedings in this category.
- when special circumstances exist which demand the reinstitution of proceedings to maintain public confidence in the criminal justice system < refer to Special Circumstances below in this section>.
Guidance
Evidence in the Case
This means all evidence and unused material received by the police by the final date for consultation prior to discontinuance. The CPS should not discontinue a case until the final date for consultation with the police has expired.
It includes material of which the police are aware but do not have in their physical possession and evidence that is not in an admissible form.
It excludes any information about potential evidence e.g. a request for results of forensic tests that has not yet received a reply.
Fresh or further evidence
This means significant evidence received by the police after the final date for consultation <see evidence in the case above in this section>
It excludes evidence that the police knew of or had in their possession but did not forward to The CPS until after the expiry of the final date for consultation.
It is essential to consult the police before taking a decision to discontinue a case to confirm that all of the evidence in the case has been communicated to The CPS. <see Termination of Proceedings, elsewhere in this guidance>
When a case is discontinued to obtain forensic evidence and The CPS expressly indicates that proceedings are likely to be re-instituted on receipt of that evidence, the case does not fall within this category but comes within special circumstances. <see special circumstances, below in this section>.
The CPS may consider re-instituting proceedings on receipt of further evidence provided that it is possible to do so. It is not possible to re institute proceedings when:
- a defendant has been acquitted
- the case has been dismissed
- the offence is summary only and the statutory time limit has expired. < see casework handling, below in this section>.
Special Circumstances to maintain public confidence
Re-institution of proceedings may be justified include the following examples:
- Rare cases in which the original decision to discontinue was not justified and a prosecution is required to maintain public confidence in the criminal justice system <see original decisions to terminate that are not justified, below in this section>
- When proceedings were terminated expressly to obtain evidence that was likely to become available
- When the suspect knowingly contributed to the provision of misleading information that was a material reason for taking the decision to discontinue proceedings on public interest grounds.
Original Decisions to terminate which are not justified
The Attorney General's undertaking regards these cases as rare.
Discontinuance must not be approached on the basis that erroneous decisions can always be rectified by reinstitution.
The decision to reinstitute such proceedings must be taken by the Chief Crown Prosecutor <see levels of decision making, below in this section>
The CCP must be satisfied that:
- the prosecutor made a significant error of law or fact in applying the evidential or the public interest test ; and
- that the decision showed such poor judgment that it cannot be justified.
The decision to terminate should be judged according to the law, Code and CPS guidance in force at the time that the decision was made. The current law and policy should be applied when deciding whether to institute proceedings in order to maintain public confidence in the criminal justice system.
There is no definitive list of factors for the CCP to consider, but include the views of witnesses, including the victim(s), delay and potential abuse of process. <refer to Abuse of Process, elsewhere in this guidance>.
General principles in favour of re-institution include the seriousness of the offence and factors against include an original error on public interest grounds only and offences at the lower end of the scale that are triable summarily only.
Procedure
Levels of Decision-making
The decision to re-institute proceedings must be taken by a CCP (or ACCP in London.) <see Attorney General's undertaking at Annex A, below in this section>.
Explaining the decision to terminate proceedings: General Principles
The CPS must make it clear that re-institution is likely whenever proceedings are discontinued on the basis of insufficient evidence but further evidence is expected to become available.
Explaining the decision: Pre-process
The police must inform The CPS if they have told the accused that he will not be charged or reported for an offence.
The CPS advice to police not to institute proceedings should include the form of words to be used when explaining that decision to the suspect. The police must explain:
- That the decision was taken on the basis of available information and
- Whether the decision was taken on evidential or public interest grounds.
Explaining the decision: before-court
When a case is discontinued, the accused will be informed by notice under section 23 Prosecution of Offences Act 1985 <see Archbold 1-276>. The accused will have a right to issue a revival notice. <refer to termination of proceedings elsewhere in this guidance>.
The accused should be advised if proceedings have been discontinued with a view to reinstitution. It is advisable to consult the CCP prior to issuing such a discontinuance notice or making an application to withdraw charges at court.
Explaining the decision: at court
Prosecutors may apply to withdraw proceedings at court. <see termination of proceedings elsewhere in this guidance>.
A successful application to withdraw an either way offence that is terminated with a view to reinstitution prevents the accused from issuing a revival notice.
The defendant must be told of the risk of proceedings being re-instituted.
Prosecutors should be able to explain to the court that the seriousness of the offence requires a prosecution notwithstanding the likely delay <see Termination of Proceedings elsewhere in this guidance>.
The court and the defendant must be told if there is an intention to re institute proceedings when proceedings are withdrawn.
The CPS must make it clear that the application to withdraw proceedings is because evidence is currently unavailable.
Proceedings cannot be reinstituted if CPS offer no evidence and the case is dismissed in the magistrates' court. <see Termination of Proceedings elsewhere in this guidance>.
Prosecutors must make a full endorsement of applications to withdraw and should invite the court clerk to make a full record on the court file.
Casework handling
Section 23 Prosecution of Offences Act 1985 terminates proceedings for the purposes of time limits in section 127 Magistrates' Courts Act 1980. Summary proceedings must be re instituted within the time limits specified in section 127 Magistrates' Courts Act 1980. <Archbold 1-202, 1-203>.
When proceedings are terminated in order to substitute charge(s), the new charge(s) should be laid before the original matters are terminated to avoid the possibility of the substitute charge amounting to a re institution of proceedings.
Cases that are terminated with a view to re institution should be monitored and reviewed to avoid delay <see Abuse of Process elsewhere in this guidance>. The suspect should be informed promptly of the decision to re institute or not to prosecute.
Annex A
Written Answers - House of Commons, 31 March, 1993 (P.200 Hansard)
ATTORNEY GENERAL.
Mr Waterson: To ask the Attorney General what amendment he proposes to make to the undertaking given by the Solicitor General on 25 April 1986 in relation to the reinstitution of proceedings which have been terminated, consequent upon the post of Deputy Director of Public Prosecutions being put into abeyance.
The Attorney-General:
“The hon. Member refers to an assurance given during the course of the debate on 25 April 1986, at column 640, on prosecution policy.
The fundamental consideration remains that individuals should be able to rely on decisions taken by the prosecuting authorities. The policy of the Director of Public Prosecutions is that a decision to terminate proceedings or not to prosecute should not, in the absence of special circumstances, be altered once it has been communicated to the defendant or prospective defendant unless it was taken and expressed to be taken because the evidence was insufficient. In such a case it would be appropriate to reconsider the decision if further significant evidence were to become available at a later date - especially if the alleged offence is a serious one.
Special circumstances which might justify departure from this policy include:
- rare cases where reconsiderations of the original decision show that it was not justified and the maintenance of confidence in the criminal justice system requires that a prosecution be brought notwithstanding the earlier decision; and
- those cases where termination has been effected specifically with a view to the collection and preparation of the necessary evidence which is thought likely to become available in the fairly near future. In such circumstances The CPS will advise the defendant of the possibility that proceedings will be re-instituted.
In the circumstances described at 1 and 2 the decision will be taken at chief crown prosecutor level with effect from 1 April, 1993.
Useful links
Archbold 1-276
Archbold 1-202
Archbold 1-203
Further information
<Annex A - Attorney General's undertaking to Parliament 31.3.1993>
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