Prosecutors' duties to tell court and defendant "at once" of significant procedural failure

[some bloke]

Split from:

South Western Railway court summons

Afternoon all and firstly, as a new member, thanks for this forum! :D This is probably a FAQ but advice needed. I committed the heinous crime back in Feb this year of travelling without a valid ticket on a SWR train from Waterloo to Gillingham

www.railforums.co.uk

The Criminal Procedure Rules say,

"1.2.—(1) Each participant, in the conduct of each case, must
... (c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules..."

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

If the company is withdrawing the case for failing to do what the rules require (and they were required to lay the information within six months), and not for some other reason, it seems to me they have a duty to tell you and the court now about the failure - not just to say the case will be withdrawn.

== Doublepost prevention - post automatically merged: 13 Sep 2024 ==

I think it would be ludicrous if the system didn't require parties to do this.

== Doublepost prevention - post automatically merged: 13 Sep 2024 ==

If a company has been repeatedly failing to comply with that rule, it might be of wider interest.

 

[island]

The Criminal Procedure Rules say,

"1.2.—(1) Each participant, in the conduct of each case, must
... (c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules..."

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

If the company is withdrawing the case for failing to do what the rules require (and they were required to lay the information within six months), and not for some other reason, it seems to me they have a duty to tell you and the court now about the failure - not just to say the case will be withdrawn.

This is incorrect.

Laying an information that the court cannot try is not a “failure to take a procedural step required by [the Criminal Procedure] Rules”.

The six month limit is located in the Magistrates Court Act and not the Criminal Procedure Rules.

 

[some bloke]

"(3) An application for the issue of a summons or warrant must—
...(b) demonstrate—
(i) that the application is made in time, if legislation imposes a time limit"

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

 

[island]

A valiant effort but still incorrect I’m afraid.

Section 127 states that the court shall not try an information if the information was laid out of time. It does not place a time limit on the making of an application for a summons.

As such, there is not a requirement to “demonstrate” on every application for a summons that the six month limit has been met.

There is no “procedural step” that has been omitted. Taking a step that should not be taken is not “failing to take a step”.

 

[some bloke]

"7.2 ...(10) Where an offence can be tried only in a magistrates’ court, then unless other legislation otherwise provides—

(a) a prosecutor must serve an application for the issue of a summons or warrant on the court officer or present it to the court; or

(b) an authorised prosecutor must issue a written charge,

not more than 6 months after the offence alleged."

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

"Note ... The *time limits for serving or presenting an application* and for issuing a written charge are prescribed by section 127 of the Magistrates’ Courts Act 1980(7) and section 30(5) of the Criminal Justice Act 2003(8)."

...

"[Note. In some circumstances the court may allow the prosecutor to amend an allegation of an offence, including to allege a different offence. In those circumstances the allegation may be amended after any *time limit for prosecuting* the different offence has expired if the amendment is based on substantially the same facts as the allegation first made.]"

https://www.legislation.gov.uk/uksi/2020/759/part/7/made/data.xht

.......

"A GUIDE TO THE CRIMINAL PROCEDURE (AMENDMENT) RULES 2023 (S.I. 2023/44)

Time limit for starting a prosecution

Rule 7.2 of the Criminal Procedure Rules governs the procedure on an application to a magistrates’ court for the issue of a summons alleging an offence. The rule refers to circumstances in which a statutory time limit applies to the making of such an application and requires the applicant prosecutor to demonstrate that the application is made in time if there is such a time limit. The usual *time limit for starting a prosecution of a summary offence* (meaning, an offence that can be tried only in a magistrates’ court) is under section 127 of the Magistrates’ Courts Act 1980."

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1135984/criminal-procedure-amendment-rules-2023-guide.pdf

 

[island]

"7.2 ...(10) Where an offence can be tried only in a magistrates’ court, then unless other legislation otherwise provides—

(a) a prosecutor must serve an application for the issue of a summons or warrant on the court officer or present it to the court; or

(b) an authorised prosecutor must issue a written charge,

not more than 6 months after the offence alleged."

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

"Note ... The *time limits for serving or presenting an application* and for issuing a written charge are prescribed by section 127 of the Magistrates’ Courts Act 1980(7) and section 30(5) of the Criminal Justice Act 2003(8)."

...

"[Note. In some circumstances the court may allow the prosecutor to amend an allegation of an offence, including to allege a different offence. In those circumstances the allegation may be amended after any *time limit for prosecuting* the different offence has expired if the amendment is based on substantially the same facts as the allegation first made.]"

https://www.legislation.gov.uk/uksi/2020/759/part/7/made/data.xht

.......

"A GUIDE TO THE CRIMINAL PROCEDURE (AMENDMENT) RULES 2023 (S.I. 2023/44)

Time limit for starting a prosecution

Rule 7.2 of the Criminal Procedure Rules governs the procedure on an application to a magistrates’ court for the issue of a summons alleging an offence. The rule refers to circumstances in which a statutory time limit applies to the making of such an application and requires the applicant prosecutor to demonstrate that the application is made in time if there is such a time limit. The usual *time limit for starting a prosecution of a summary offence* (meaning, an offence that can be tried only in a magistrates’ court) is under section 127 of the Magistrates’ Courts Act 1980."

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1135984/criminal-procedure-amendment-rules-2023-guide.pdf

Yes, I'm very aware of all that thank you.

The Criminal Procedure Rules say,

"1.2.—(1) Each participant, in the conduct of each case, must
... (c) at once inform the court and all parties of any significant failure (whether or not that participant is responsible for that failure) to take any procedural step required by these Rules..."

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

If the company is withdrawing the case for failing to do what the rules require (and they were required to lay the information within six months), and not for some other reason, it seems to me they have a duty to tell you and the court now about the failure - not just to say the case will be withdrawn.

You appear be stating that you believe the latter requires the prosecutor to inform the court of the laying of an information out of time. You are and remain mistaken in that belief.

I will repeat, for the final time, the reason why you are mistaken, which is:

You have not identified the significant failure to take procedural step that is required and it does not appear that there is one.

There is no doubt that the prosecutor has, by laying the information out of time, taken a procedural step that should not have been taken.

"Taking a step that should not have been taken" is not the same as "failure to take a procedural step that is required". The first of these, which is what happened, involves doing something when one should have done nothing. The second involves doing nothing when one should have done something. They are entirely different things. The CPR require the parties to inform the court if the second happens. The CPR do not require the parties to inform the court if the first happens.

The prosecutor has quite properly discontinued the case and that is all that is of concern to the OP.

I won't be replying further to you.

 

[some bloke]

You have not identified the significant failure to take procedural step that is required and it does not appear that there is one.

I thought it was obvious: a failure to apply in time (and to demonstrate this by appropriate dates on the form).

It's a procedural step required for the case to be heard, which is the kind of thing the rules are about.

== Doublepost prevention - post automatically merged: 16 Sep 2024 ==

The six month limit is located in the Magistrates Court Act and not the Criminal Procedure Rules

[the rules say] a prosecutor must serve an application for the issue of a summons or warrant on the court officer or present it to the court; or

(b) an authorised prosecutor must issue a written charge,

not more than 6 months after the offence alleged

 

[Puffing Devil]

I thought it was obvious: a failure to apply in time (and to demonstrate this by appropriate dates on the form).

It's a procedural step required for the case to be heard, which is the kind of thing the rules are about.

Nobody cares or will do anything about it. The court will be pleased that there's another case off their books, and the closure rate will most likely go up. The Magistrates will never see this; it will be handled by their Clerk. Even if it was raised in court, there may be a minor grumble or just that it was noted. Nothing else will happen. HMCTS and the rest of the justice system are too stretched to worry about anything other than keeping the wheels on the wagon.

Case closed, next case please.

 

[some bloke]

Nobody cares or will do anything about it.

The people who have expressed an interest in whether the company applied out of time are posters on this thread.

No-one has claimed the court or the rest of the justice system will care about this case. The point is that where a company fails in one such duty, the defendant and court are entitled to be informed of it "at once". So a defendant should be able to get the information.

If companies are repeatedly hiding their basic errors, that makes it harder for them to be held to account.

== Doublepost prevention - post automatically merged: 16 Sep 2024 ==

And if the OP wants, they can write a brief email to the company pointing out that it has a duty under the rules to inform them at once of any failure to take a required step under the rules.

Some people, whether defendants or not, might sometimes be interested to attend court so that they can report on a company's admission or non-admission of a breach.

It is not necessarily useless to be clear about what constitutes a breach.

 

[Puffing Devil]

The people who have expressed an interest in whether the company applied out of time are posters on this thread.

No-one has claimed the court or the rest of the justice system will care about this case. The point is that where a company fails in one such duty, the defendant and court are entitled to be informed of it "at once". So a defendant should be able to get the information.

If companies are repeatedly hiding their basic errors, that makes it harder for them to be held to account.

== Doublepost prevention - post automatically merged: 16 Sep 2024 ==

And if the OP wants, they can write a brief email to the company pointing out that it has a duty under the rules to inform them at once of any failure to take a required step under the rules.

Some people, whether defendants or not, might sometimes be interested to attend court so that they can report on a company's admission or non-admission of a breach.

It is not necessarily useless to be clear about what constitutes a breach.

Apologies - nobody in the judicial process cares.

I'd suggest you would be better engaged in diverting your enthusiasm for this minor matter into driving improved funding and outcomes for the entire Criminal Justice system, which has been systematically underfunded for decades.

Maybe then someone might care.

 

[some bloke]

One problem with a company just saying "we'll drop the case on xx date" when they in fact have a duty to inform the defendant and court of a critical flaw in their case "at once" is that the defendant may be put to entirely unnecessary worry about the (pointless) prosecution during that time.

 

[Haywain]

One problem with a company just saying "we'll drop the case on xx date" when they in fact have a duty to inform the defendant and court of a critical flaw in their case "at once" is that the defendant may be put to entirely unnecessary worry about the (pointless) prosecution during that time.

In reality, if anybody notices the error the case will be withdrawn before it gets to the court and the defendant and the court will be happy with that. If nobody notices, then the case will proceed and nobody will care about something of which they are ignorant. The idea that the prosecutor has to notice a mistake and yet proceed to court in order to tell the court that a mistake has been made is just ludicrous and serves no-one's interests.

 

[some bloke]

In reality, if anybody notices the error the case will be withdrawn before it gets to the court

In this case the company said they will withdraw it on the court date.

The idea that the prosecutor has to notice a mistake and yet proceed to court in order to tell the court that a mistake has been made is just ludicrous and serves no-one's interests.

I'm sorry, I don't understand this point. If they notice a significant failure, their duty under the rules is to inform the court at once.

 

[Haywain]

I'm sorry, I don't understand this point. If they notice a significant failure, their duty under the rules is to inform the court at once.

I was referring to this:

Some people, whether defendants or not, might sometimes be interested to attend court so that they can report on a company's admission or non-admission of a breach.

 

[some bloke]

Some people, whether defendants or not, might sometimes be interested to attend court so that they can report on a company's admission or non-admission of a breach.

An example where the company applies for leave for withdrawal at the court is here ("they always just withdraw on the day"):

Before I got called, a Northern representative came out and said they will be withdrawing the case. I said, why didn’t you tell me or the court before now and he said they always just withdraw on the day.

the prosecutor was going to withdraw the charge as the first step but I said I wanted to speak first.

I think @KirkstallOne raised a very valid question about why the company waited.

Another question is whether they are allowed to.

I would guess that part of the reasoning behind the rule on informing "at once" of significant procedural failures is that it is unfair to inconvenience people for no good reason.

It appears that companies may have another duty they aren't fulfilling, if they wait until the court hearing date to apply for withdrawal:

"17.7... (2) A person applying under the rule must—
(a) apply in writing as soon as practicable after becoming aware of the grounds for doing so, explaining why he wants the summons, warrant or order to be withdrawn"

The Criminal Procedure Rules 2020

The Criminal Procedure Rules 2020:consolidate the Criminal Procedure Rules 2015, S.I. 2015/1490, with the amendments made by S.I. 2016/120, 2016/705, 2017/144, 2017/282, 2017/755, 2017/915, 2018/132, 2018/847, 2019/143, 2019/1119 and 2020/32; andinclude the further amendments listed beneath.

www.legislation.gov.uk

@Monkeymoo seems to know that the company suddenly said they would withdraw (ie apply for leave) soon after being told they were or might be in breach of a rule.

If they wanted, a defendant could attend court and attempt to draw the attention of the magistrates to any procedural failures, and/or potentially misleading statements by the company to the court about why they were making the request.

Since the prosecutor has a duty to inform the defendant and court at once, a defendant might be able to get a clear answer at court about the company's relevant failures.

These might seem like trivial matters to some, but perhaps understanding of the rules could provide tools which some defendants might find useful for their own benefit or for other purposes.

..........

"Offences can be withdrawn by the prosecutor in the magistrates' court (only) at any time before adjudication by the court. ...

Leave to withdraw is required. The court has complete discretion whether to grant leave. The prosecuting 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 they should be entitled to an acquittal."

Termination of Proceedings (Including Discontinuance) | The Crown Prosecution Service

www.cps.gov.uk

 

[furlong]

I think attending the hearing might allow for costs to be awarded.

 

[some bloke]

I'm sorry - I've looked again at Rule 17.7 and seen that it's about applying for a witness summons, warrant or order to be withdrawn rather than ending the case.

However, prosecutors may have relevant duties under Rule 3.3 to help the court in

i) its duties under Rule 3.2 to discourage delay and avoid unnecessary hearings,

and

ii) the "overriding objective" in Rule 1.1 which includes "dealing with the case efficiently and expeditiously"

by not delaying an application for the case to be withdrawn.

Rule 1.2 says,

"(1) Each participant, in the conduct of each case, must―

(a) prepare and conduct the case in accordance with the overriding objective".

The Criminal Procedure Rules 2020 (revoked)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

www.legislation.gov.uk