R v DPP and Others, ex parte Cooke
| Jurisdiction | England & Wales |
| Judgment Date | 10 December 1991 |
| Date | 10 December 1991 |
| Court | Queen's Bench Division |
Queen's Bench Divisional Court
Before Lord Justice Watkins and Mr Justice Judge
Criminal procedure - notice of discontinuance - not the only method
A prosecutor's power under section 23 of the Prosecution of Offences Act 1985 to serve a notice of discontinuance on a defendant was additional to pre-existing powers to discontinue a prosecution and was not the only way that proceedings could be discontinued.
The Queen's Bench Divisional Court so held dismissing Jonathan Cooke's application for orders of mandamus directing the Crown Prosecution Service to serve a notice of discontinuance on him in respect of two charges of assault occasioning actual bodily harm and directing Brent Justices to treat the charges as continuing and preventing them hearing the substituted charges of police assault.
Section 23 of the 1985 Act provides: "(3) Where, at any time during the preliminary stages of the proceedings, the Director gives notice … that he does not want the proceedings to continue, they shall be discontinued with effect from the giving of that notice…
"(7) … the accused shall, if he wants the proceedings to continue, give notice to that effect…".
Mr Kenneth Craig for the applicant; Mr Andrew Collins, QC and Mr Richard McManus for the CPS; the justices did not appear and were not represented.
LORD JUSTICE WATKINS said that the applicant had been charged with two offences of assault occasioning actual bodily harm contrary to section 47 of the Offences against the Person Act 1861.
At the start of committal proceedings the CPS withdrew those two charges and substituted two charges of police assault contrary to section 51 of the Police Act 1964.
The applicant argued that by purporting to withdraw the charges in court and by failing to serve a notice of...
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