Director of Public Prosecutions v Owain McFarlane
| Jurisdiction | England & Wales |
| Judge | Lord Justice Males,Mr Justice Popplewell |
| Judgment Date | 04 July 2019 |
| Neutral Citation | [2019] EWHC 1895 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1674/2019 |
| Date | 04 July 2019 |
[2019] EWHC 1895 (Admin)
Lord Justice Males
Mr Justice Popplewell
CO/1674/2019
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Mr James Boyd (instructed by Crown Prosecution Service, Appeals & Review Unit) appeared on behalf of the Appellant.
Mr David Spens QC appeared on behalf of the Respondent.
This is an appeal by way of a case stated by DJ (MC) Bopa Rai, sitting at Cheltenham Magistrates' Court, which asks, in effect, whether she was right to hold that two charges of wilfully obstructing police officers were time barred as proceedings had not been instituted in time.
The case stated
The facts of the case can be shortly stated as follows:
“3 The appellant was arrested and charged on 4 July 2018 with resisting PC Tranter in the execution of his duty, contrary to section 89(2) of the Police Act 1996.
4 The case was listed for first hearing at Cheltenham Magistrates' Court on 16 August 2018, when the defendant pleaded not guilty, and the case adjourned till 15 October 2018 for trial.
5 On 15 October 2018, the CPS applied to the court to amend the charge from resisting PC Tranter to obstructing PC Tranter. The application was granted, following which neither party was ready for trial, so a further case management hearing was held and a new trial date was set for 6 December 2018.
6 On 16 November 2018, the CPS sent by email to the defendant's solicitors and the court details of two additional charges alleging that the defendant had wilfully obstructed PC Hunter and PC Ben Smith on 4 July 2018. The email read ‘Please find attached additional charges. Please be advised that we will not be continuing with the charge involving PC Tranter.’
7 On 20 November 2018 the CPS made an application to adjourn the trial due to medical incapacity of an essential police witness. A senior legal adviser agreed to an adjournment to 24 January 2019 for a further case management hearing with a provisional trial date set for 27 February 2019.
8 A request was received from the defence solicitors to adjourn the trial on 6 December 2018 in the light of the additional charges. The defence requested an oral hearing seeking an explanation as to how the new charges were being brought, and why the defendant had not been notified. The hearing was fixed for 24 January 2019.
9 At that hearing, Mr Dono representing the CPS offered no evidence in respect of the original charge, as amended, of wilfully obstructing PC Tranter, and that charge was dismissed. Mr Dono then indicated his desire to proceed with the two additional charges.
The District Judge recorded that the submissions of the parties were as follows:
(1) Mr Dono for the prosectuion submitted that the additional charges had been laid in time in accordance with section 127 of the Magistrates' Courts Act 1980, and that by sending the additional charges by email to the defendant's solicitors this was sufficient. Mr Dono was unaware of the procedure laid out in section 29 of the CJA 2003, and submitted that he thought the court would notify the defendant. The court corrected Mr Dono by pointing out that the obligation was on the Crown. Mr Dono confirmed that this was not done.
(2) Mr Masih submitted on behalf of the defendant that section 29(3) of the Criminal Justice Act 2003 required that any additional charge and requisition be served on the person concerned, and as the additional charges and requisition had not been served on the defendant, it was now too late to proceed with them.
The District Judge ruled as follows:
“The prosecution had six months in which to lay an information charging a summary offence, in accordance with section 127 of the Magistrates' Courts Act 1980; they had done this within six months. However, where additional summary offences were to be preferred, the prosecutor had to ensure that the charges and requisition were served on the person concerned, namely the defendant in accordance with section 29(3) of the Criminal Justice Act 2003. As the prosecutor conceded that this had not been done, the additional charges were now time barred and should be stayed.”
The two methods of commencing summary proceedings
There are two methods by which summary proceedings in the Magistrates' Court may be commenced. The first and long-established method is by laying an information. Section 1 of the Magistrates' Courts Act 1980 provides that when an information “is laid before a justice of the peace that a person has or is suspected of having committed an offence”, the justice may issue a summons requiring the person to appear before a court or a warrant for his arrest.
The second is by issuing a written charge. This method was introduced by section 29 of the Criminal Justice Act 2003.
In both cases proceedings must be commenced within 6 months from the time when the offence was committed as provided by section 127(1) of the Magistrates' Courts Act 1980:
“(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.”
When proceedings are commenced by way of a written charge under section 29 of the 2003 Act, section 30(5)(a) of that Act provides that —
“(a) any reference (however expressed) which is or includes a reference to an information within the meaning of section 1 of the Magistrates' Courts Act 1980 (c. 43) (or to the laying of such an information) is to be read as including a reference to a written charge (or to the issue of a written charge).”
The District Judge took the view that the document attached to the CPS email dated 16 November 2018 was a written charge, but that the CPS's failure to issue a requisition and to serve that requisition on the defendant personally rendered the commencement of proceedings invalid with the result that proceedings in respect of the two additional charges had not been commenced within the 6-month period.
Section 29 of the Criminal Justice Act 2003, as subsequently amended, provides as follows:
“(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) Where a relevant prosecutor issues a written charge, it must at the same time issue —
(a) a requisition, or
(b) a single justice procedure notice.
(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.
(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 —
(a) whether the person desires to plead guilty or not guilty, and
(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.
(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.
(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.
(3B) If a single justice procedure notice is served on a person, the relevant prosecutor must —
(a) at the same time serve on the person such documents as may be prescribed by Criminal Procedure Rules, and
(b) serve copies of those documents on the designated officer specified in the notice.
(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.
(4) A relevant prosecutor authorised to issue a requisition is not to have the power to lay an information for the purpose of obtaining the issue of a summons under section 1 of the Magistrates' Courts Act 1980 (c. 43).
(5) In this section ‘relevant prosecutor’ means —
(a) a police force or a person authorised by a police force to institute criminal proceedings,
(b) the Director of the Serious Fraud Office or a person authorised by him to institute criminal proceedings,
(c) the Director of Public Prosecutions or a person authorised by him to institute criminal proceedings,
(ca) …
(cb) the Director General of the National Crime Agency or a person authorised by him to institute criminal proceedings,
(d) the Attorney General or a person authorised by him to institute criminal proceedings,
(e) a Secretary of State or a person authorised by a Secretary of State to institute criminal proceedings,
(f) the Commissioners of Inland Revenue or a person...
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