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Instituting Criminal Proceedings 

Instituting Criminal Proceedings
Chapter:
Instituting Criminal Proceedings
Author(s):

David Johnston

and Glenn Hutton

DOI:
10.1093/law/9780198806110.003.0002
Page of

Subscriber: null; date: 15 August 2018

2.2.1 Introduction

There are many ways in which the appearance of a defendant before a magistrates’ court can be secured:

  • by the accused being arrested and, following CPS advice, charged by the police and brought before a court; or

  • by the accused being arrested and then granted police bail to give the CPS time to decide whether to prosecute; the CPS may then start a prosecution by using the ‘written charge and requisition procedure’; or

  • by the accused being arrested and then granted bail subject to a requirement to return to the police station on a specified date; where the CPS decide there is sufficient evidence to charge the police will charge the accused when they answer their bail; or

  • by the accused being served with a ‘written charge and requisition’ without first having been arrested; or

  • in the case of a private prosecution, by the laying of an information by the prosecutor before a magistrate resulting in the issue of a summons requiring the accused to attend at court on a specified day to answer the allegation in the information; or

  • by the laying of an information by a prosecutor before a magistrate resulting in the issue of a warrant for the defendant to be arrested and brought before the court. Alternatively, the warrant may be backed for bail where the defendant is arrested and then released on bail to attend court on a specified day.

2.2.2 Written Charge and Requisition

The procedure in relation to instituting criminal proceedings is provided by the Criminal Justice Act 2003, s. 29, which states:

  1. (1) A relevant prosecutor may institute criminal proceedings against a person by issuing a document (a ‘written charge’) which charges the person with an offence.

  2. (2) Where a relevant prosecutor issues a written charge, it must at the same time issue—

    1. (a) a requisition, or

    2. (b) a single justice procedure notice.

  3. (2A) A requisition is a document which requires the person on whom it is served to appear before a magistrates’ court to answer the written charge.

  4. (2B) A single justice procedure notice is a document which requires the person on whom it is served to serve on the designated officer for a magistrates’ court specified in the notice a written notification stating—

    1. (a) whether the person desires to plead guilty or not guilty, and

    2. (b) if the person desires to plead guilty, whether or not the person desires to be tried in accordance with section 16A of the Magistrates’ Courts Act 1980.

  5. (3) Where a relevant prosecutor issues a written charge and a requisition, the written charge and requisition must be served on the person concerned, and a copy of both must be served on the court named in the requisition.

  6. (3A) Where a relevant prosecutor issues a written charge and a single justice procedure notice, the written charge and notice must be served on the person concerned, and a copy of both must be served on the designated officer specified in the notice.

  7. (3B) If a single justice procedure notice is served on a person, the relevant prosecutor must—

    1. (a) at the same time serve on the person such documents as may be prescribed by Criminal Procedure Rules, and

    2. (b) serve copies of those documents on the designated officer specified in the notice.

  8. (3C) The written notification required by a single justice procedure notice may be served by the legal representative of the person charged on the person’s behalf.

Keynote

In relation to s. 29(2B)(b), s. 16A of the 1980 Act makes provision for a single justice to exercise the jurisdiction of a magistrates’ court in certain cases.

A relevant prosecutor authorised to issue a requisition does not have the power to lay an information for the purpose of obtaining the issue of a summons under s. 1 of the Magistrates’ Courts Act 1980 (s. 29(4)).

Section 29(5) defines a ‘relevant prosecutor’ and includes a police force, the Director of Public Prosecutions (i.e. all Crown Prosecution Service prosecutions), the Director of the Serious Fraud Office, the Director General of the National Crime Agency, the Attorney General, a Secretary of State, or a person so authorised by any of the above.

2.2.3 Service of the Summons or Requisition

The Criminal Procedure Rules 2015 provide that a summons, requisition or witness summons may be served on a person by the following means:

Service by handing over a document (Rule 4.3)

  1. (1) A document may be served on—

    1. (a) an individual by handing it to him or her;

    2. (b) a corporation by handing it to a person holding a senior position in that corporation;

    3. (c) an individual or corporation who is legally represented in the case by handing it to that representative;

  2. (2) If an individual is under 18, a copy of a document served under paragraph (1)(a) may be handed to his or her parent, or another appropriate adult, unless no such person is readily available.

Service by leaving or posting a document (Rule 4.4)

  1. (1) A document may be served by addressing it to the person to be served and leaving it at the appropriate address for service under this rule, or by sending it to that address by first class post or by the equivalent of first class post.

  2. (2) The address for service under this rule on—

    1. (a) an individual is an address where it is reasonably believed that he or she will receive it;

    2. (b) a corporation is its principal office, and if there is no readily identifiable principal office then any place where it carries on its activities or business;

    3. (c) an individual or corporation who is legally represented in the case is that representative’s office;

Keynote

A document served under r. 4.3 is served on the day it is handed over (r. 4.11).

The person who serves a document may prove that by signing a certificate explaining how and when it was served (r. 4.12).

2.2.4 Service Outside England and Wales

The following legislation deals with the service of documents outside England and Wales:

  • Section 39 of the Criminal Law Act 1977 (service in Scotland and Northern Ireland) provides that a summons, written charge, requisition and a single justice procedure notice, requiring a person charged with an offence to appear before a court in England or Wales, and any other document which, by virtue of any enactment, may or must be served on a person with, or at the same time as, a document mentioned in paragraph (a), (b), (c) or (ca) above, may, in such manner as may be prescribed by rules of court, be served on him in Scotland or Northern Ireland (s. 1). This also applies to a summons directed to a person that is issued after the person’s trial has begun (s. 1A).

  • Section 1139(4) of the Companies Act 2006 (service of copy summons, etc. on company’s registered office in Scotland and Northern Ireland).

  • Sections 3, 4, 4A and 4B of the Crime (International Co-operation) Act 2003, and rr. 49.1 and 49.2 of the Criminal Procedure Rules 2015 (service of summons, etc. outside the United Kingdom).

  • Section 1139(2) of the Companies Act 2006 (service on overseas companies).

2.2.5 Issue of Warrants

There are several different types of warrants which may be issued by justices, some of which are detailed below.

2.2.5.1 Warrant to Arrest an Offender

The terms of a warrant for arrest require each person to whom it is directed to arrest the defendant and either bring him/her to a court specified in the warrant or required or allowed by law, or release the defendant on bail (with or without conditions) to attend court at a date, time and place specified or to be notified by the court (Criminal Procedure Rules 2015, r. 13.2).

Section 1(1)(b) of the Magistrates’ Courts Act 1980 provides that, whenever a justice before whom an information is laid has power to issue a summons, he/she may alternatively issue a warrant for the arrest of the person named in the information, save that:

  • the information must be in writing (s. 1(3)); and

  • where the person in respect of whom the warrant is to be issued has attained the age of 18, the offence is an indictable offence or is punishable with imprisonment or else the person’s address is not sufficiently established for a summons, or a written charge and requisition, to be served on him/her (s. 1(4)).

Keynote

An arrest warrant may not be issued in the case of private prosecutions without the consent of the DPP (s. 1(4A)).

Warrants for arrest under s. 1(1)(b) of the 1980 Act are not commonly issued as police officers may arrest (without warrant) for any offence to allow its prompt and effective investigation, or to prevent the prosecution for an offence being hindered by the disappearance of the defendant (s. 24 of the Police and Criminal Evidence Act 1984). However, any warrant to arrest a person in connection with an offence, and certain other warrants, may be executed by a constable even though it is not in his/her possession at the time (s. 125D).

2.2.5.2 Warrant to Arrest a Witness

The Magistrates’ Courts Act 1980 provides that a justice of the peace may issue a warrant where he/she is satisfied that it is in the interests of justice to secure the attendance of a person who could give material evidence. However, a warrant may only be issued where the justice of the peace is satisfied, by evidence on oath, that a summons would not procure the attendance of the person (s. 97(2)). In addition, a warrant may also be issued where a person fails to attend the court in answer to a summons where there is proof of its service, if it appears to the court that there is no just excuse for the failure (s. 97(3)).

Similar powers exist for witness warrants (and summonses) for the High Court and the Crown Court.

2.2.5.3 Warrant to Arrest in Default

This warrant is issued where a person defaults in payment of a fine or other sum and is a type of commitment warrant.

2.2.5.4 Warrant to Commit to Detention or Imprisonment

The person who executes a warrant of detention or imprisonment must take the defendant to any place specified in the warrant, or if that is not immediately practicable, to any other place at which the defendant may be lawfully detained; obtain a receipt from the custodian; and notify the court officer that the defendant has been taken to that place (Criminal Procedure Rules 2015, r. 13.5(4)).

2.2.5.5 Warrant to Distrain Property

This warrant is issued in an effort to collect money. It allows certain goods to be seized and sold as prescribed by the Criminal Procedure Rules 2015, Part 30: Enforcement of Fines and Other Orders for Payment.

2.2.6 Execution of Warrants

The Criminal Procedure Rules 2015, r. 13.5 states:

  1. (1) A warrant may be executed—

    1. (a) by any person to whom it is directed; or

    2. (b) if the warrant was issued by a magistrates’ court, by anyone authorised to do so by section 125 (warrants), 125A (civilian enforcement officers) or 125B (execution by approved enforcement agency) of the Magistrates’ Courts Act 1980.

  2. (2) The person who executes a warrant must—

    1. (a) explain, in terms the defendant can understand, what the warrant requires, and why;

    2. (b) show the defendant the warrant, if that person has it; and

    3. (c) if the defendant asks—

      1. (i) arrange for the defendant to see the warrant, if that person does not have it, and

      2. (ii) show the defendant any written statement of that person’s authority required by section 125A or 125B of the 1980 Act.

Keynote

The Magistrates’ Courts Act 1980, s. 125 provides that a warrant issued by a magistrates’ court may be executed by any person to whom it is directed or by any constable acting within that constable’s police area.

Certain warrants issued by a magistrates’ court (arrest, commitment, detention, distress, or in connection with the enforcement of a fine or other order) may be executed anywhere in England and Wales by a civilian enforcement officer (s. 125A) or by an approved enforcement agency (s. 125B). In either case, the person executing the warrant must, if the defendant asks, show a written statement indicating: that person’s name; the authority or agency by which that person is employed, or in which that person is a director or partner; that that person is authorised to execute warrants; and, where s. 125B applies, that the agency is registered as one approved by the Lord Chancellor. A warrant to which s. 125A applies may be executed by any person entitled to execute it even though it is not in that person’s possession at the time (s. 125D).

In order to execute a warrant of arrest issued in connection with, or arising out of criminal proceedings, or a warrant of commitment issued under s. 76 of the 1980 Act, a constable may enter and search any premises where he/she has reasonable grounds for believing the person sought is on the premises. The search may only be to the extent required and is restricted to the parts of the premises where the constable reasonably believes the person may be. Reasonable force may be used when necessary. These powers are derived from ss. 17(1)(a) and 117 of the Police and Criminal Evidence Act 1984. Civilian enforcement officers and approved enforcement agencies may be authorised to enter and search premises for the purposes of executing a warrant (for or in connection with any criminal offence), only to the extent reasonably required, and where they have reasonable grounds for believing the person is on the premises (sch. 4A to the 1980 Act).

The Criminal Procedure Rules 2015, r. 13.5(3) states that a person who executes a warrant of arrest requiring the defendant to be released on bail must make a record of:

  • the defendant’s name;

  • the reason for the arrest;

  • the defendant’s release on bail; and

  • when and where the warrant requires the defendant to attend court; and serve the record on the defendant, and the court officer.

Other types of warrants that may be executed by a constable are listed in s. 125D(3) of the 1980 Act as a warrant under the: Armed Forces Act 2006; General Rate Act 1967 (insufficiency of distress); Family Law Act 1996 (failure to comply with occupation order or non-molestation order); Crime and Disorder Act 1998 (unwilling witnesses); Powers of Criminal Courts (Sentencing) Act 2000 (offenders referred to court by youth offender panel); and Magistrates’ Courts Act 1980 (warrants relating to the non-appearance of a defendant, warrants of commitment, warrants of distress and warrants to arrest a witness).

2.2.6.1 Disclosure of Information for Enforcing Warrants

The Magistrates’ Courts Act 1980, s. 125CA states:

  1. (1) A magistrates’ court may make a disclosure order if satisfied that it is necessary to do so for the purpose of executing a warrant to which this section applies.

  2. (2) This section applies to a warrant of arrest, commitment, detention or distress issued by a justice of the peace in connection with the enforcement of a fine or other order imposed or made on conviction.

  3. (3) A disclosure order is an order requiring the person to whom it is directed to supply the designated officer for the court with any of the following information about the person to whom the warrant relates—

    1. (a) his name, date of birth or national insurance number;

    2. (b) his address (or any of his addresses).

  4. (4) A disclosure order may be made only on the application of a person entitled to execute the warrant.

Keynote

The disclosure order may require that basic personal information (name, date of birth, national insurance number and address or addresses) held by a relevant public authority be supplied by that authority to the court for the purpose of facilitating the enforcement of a s. 125A(1) warrant which is so specified (s. 125C(1)).

A ‘relevant public authority’ means a Minister of the Crown, government department, local authority or chief officer of police specified in an order made by the Lord Chancellor (s. 125C(2)).

The information supplied for the purpose of facilitating the enforcement of a s. 125A(1) warrant may be supplied to any person entitled to execute the warrant; any employee of a body or person who, for the purposes of s. 125B, is an approved enforcement agency in relation to the warrant; or any justices’ clerk or other person appointed under s. 2(1) of the Courts Act 2003 (s. 125C(3)).

Under s. 125C(4) it is an offence for a person to intentionally or recklessly disclose information supplied to him/her under this section otherwise than as permitted by subs. (3), or use information so supplied otherwise than for the purpose of facilitating the enforcement of the s. 125A(1) warrant concerned. However, it is not an offence to disclose any information in accordance with any enactment or order of a court or for the purposes of any proceedings before a court, or to disclose any information which has previously been lawfully disclosed to the public (s. 125C(5)).

2.2.6.2 Execution of Warrants throughout the United Kingdom

Section 136 of the Criminal Justice and Public Order Act 1994 states:

  1. (1) A warrant issued in England, Wales or Northern Ireland for the arrest of a person charged with an offence may (without any endorsement) be executed in Scotland by any constable of any police force of the country of issue or of the country of execution, or by a constable appointed under section 53 of the British Transport Commission Act 1949, as well as by any other persons within the directions of the warrant.

  2. (2) A warrant issued in—

    1. (a) Scotland; or

    2. (b) Northern Ireland,

      for the arrest of a person charged with an offence may (without any endorsement) be executed in England and Wales by any constable of any police force of the country of issue or of the country of execution, or by a constable appointed under section 53 of the British Transport Commission Act 1949, as well as by any other persons within the directions of the warrant.

Keynote

In addition to a warrant for the arrest of a person charged with an offence, this section also relates to: (a) a warrant of commitment and a warrant to arrest a witness issued in England, Wales or Northern Ireland; and (b) a warrant for committal, a warrant to imprison (or apprehend and imprison) and a warrant to arrest a witness issued in Scotland. In addition, the section also applies to a warrant for the arrest of an offender referred back to court by a youth offender panel (sch. 1, para. 3(2) to the Powers of Criminal Courts (Sentencing) Act 2000), issued in England and Wales.

Section 38A of the Criminal Law Act 1977 provides for the cross-border execution of Scottish commitment warrants for non-payment of fines, and s. 38B contains similar provisions for such warrants being executed between England, Wales and Northern Ireland.

The Indictable Offences Act 1848, s. 13 provides that warrants from the Isle of Man and the Channel Islands may be executed in England and Wales where they have been endorsed by a justice of the peace.

The execution of warrants from other countries is dealt with by the Extradition Act 2003. This provides a fast-track extradition arrangement with Member States of the European Union and Gibraltar. Such warrants must state that the person in question is accused in the territory issuing the warrant of the commission of a specified offence and that the warrant has been issued for the purposes of arrest and prosecution.