Beware of the discontinuance; sleeping dogs can bite

The Crown Prosecution Service (CPS)'s guidance about when it is appropriate to reinstate discontinued criminal proceedings should be ringing alarm bells about how, and why, the charges were dropped in the first place.

In Spring 2021, the CPS published new Guidance on “Reconsidering A Prosecution Decision”. It is a helpful document which all defence practitioners should read.

The Magistrates' Court

Criminal charges working their way through the Magistrates’ Court can be discontinued at any time before a verdict. But an important question is why the Prosecutor is choosing to discontinue (which amounts to writing a letter) rather than formally ‘offering no evidence’ inside the courtroom.

There are a range of potential reasons, but misjudging the situation might lead to the defendant being prosecuted again, with the Prosecution allowed to reinstate charges completely unencumbered by their first aborted attempt.

The Crown Court

In the Crown Court, discontinuance is only possible before an indictment has been preferred. Since the abolition of committal proceedings from the Magistrates’ Court, indictments tend to be preferred in time for the first Crown Court hearing, typically a Plea and Trial Preparation Hearing held four weeks after the Magistrates' Court hearing. This timetable means that discontinuance is becoming unusual in the Crown Court. When the prosecution falls on their sword, they tend to do it formally by offering no evidence in a court hearing.

Discontinuance v dismissal: the legal effects

When the Prosecutor ‘offers no evidence’, the charge is dismissed which has the same legal effect as a ‘not guilty’ verdict after trial (i.e. an acquittal). The defendant cannot then be prosecuted for the same offence again unless “new and compelling evidence” comes to light pursuant to section 78 of the Criminal Justice Act 2003 and it is deemed to be in the public interest. Moreover, a retrial is only possible in respect of a limited number of serious offences set out in Schedule 5 of the Act. In practice, use of this procedure is extremely rare. A retrial must be affirmed on application to the Court of Appeal, which may only be made with the Director of Public Prosecution's consent. For the defence, dismissal is the gold standard of success. It has the same legal impact as winning at trial, but without having to wait for, pay for, and then endure, the trial.

Discontinuance, however, is a different legal animal. The Prosecutor is granted the discretion to discontinue a charge by section 23 of the Prosecution of Offences Act 1985. The statute contains no test to be satisfied, i.e. the Prosecutor is allowed for discontinue for any reason. Provided a notice is filed, section 23(3) allows a Prosecutor to discontinue simply because she wants to. In practice, however, most Prosecutors choose to give reasons anyway. Indeed, the CPS Guidance recommends that the defendant should be informed of:-

• The reason why a case is not to be prosecuted or is to be stopped;
• Any right of the suspect to issue a revival notice; and
• The possibility that the case may be prosecuted in future.

A defendant’s right to revive proceedings: kamikaze legal advice?

The right to issue a revival notice has now gained real importance. Section 23(7) of the 1985 Act confers the defendant a right to insist on his prosecution being revived and listed in court, provided he notifies the Prosecutor within 35 days.

Very few criminal defence solicitors tend to exercise this right. Who in their right mind would insist on their client’s prosecution being re-instigated? The simple answer is anyone who thinks they can obtain the gold standard - by forcing the Prosecutor to offer no evidence in court and have the case dismissed.

From the defendant’s perspective, it is crucial to understand that a 'Victim's Right to Review' (VRR) can trump a discontinuance, but it cannot trump a CPS decision to offer no evidence. See paragraph 2.14 here.

It should also be noted that each complainant has three months from the date of discontinuance to invoke their right of review. Legally, this allows for three months of uncertainty following discontinuance. In many cases the defendant and complainant might have an acrimonious or ‘on-off’ relationship - so who knows when a VRR might later be triggered?

Always ask why

The decision whether to revive proceedings requires an understanding of the Prosecutor’s decision to discontinue in the first place, particularly where the prosecution case seemed fairly solid. The defence must always read a Notice of Discontinuance carefully, considering three key questions:

1) Why is this being issued at all?
2) Why is being issued now?
3) Why not formally ‘offer no evidence’ in court?

Of course, given that the vast majority of discontinuances happen in the Magistrates’ Court, there will be many defendants who are unrepresented on summary charges that either do not financially qualify for legal aid, and/or the discontinuance might be have been filed before they arranged representation. Many will not know what the Prosecutor is really doing, or why. They will almost certainly be unaware of their rights. Deciding to re-open the charge against themselves would feel like legal suicide.

But all such defendants would be vulnerable to the Crown re-instigating proceedings. As the Crown’s own guidance on re-instigating charges sets out, s23(7) is listed as a specific protection for the defendant who wants formal dismissal. You have been warned.

The other listed protection is the law of abuse of process, although that is extremely difficult to establish and is reactive, rather than preventative.

Practical examples of discontinued cases

Case 1

In 2019, this firm defended a man charged with assaulting a police officer. On the eve of trial, the Crown issued a notice of discontinuance. The reason given for CPS discontinuance was: “There is not enough evidence to provide a realistic prospect of conviction, but please note it is anticipated further evidence may become available in the near future as a result of which the prosecution may well start again”.

The Court swiftly confirmed to both sides that the trial hearing, listed for the following morning, had been vacated. It later transpired that the police were simply having difficulty retrieving a piece of unserved Bodyworn footage, meaning that pre-trial disclosure had not been properly completed. In other words, the Prosecution were not trial-ready. Discontinuing the charge meant the Prosecution avoided running the gauntlet of applying for an adjournment in open Court, on the day of trial. Had they unsuccessfully applied to adjourn on the day of trial, the Crown would have been forced to ‘offer no evidence’ i.e. the outcome would have been ‘charge dismissed’, not ‘charge discontinued’.

In fairness, the Crown’s explanation dropped a hint about what was really going on. In reality, the Crown were granting themselves extra time to sort out their file for trial. The Crown duly used this time to reinstate the charge. This followed a Victim’s Right to Review from the assaulted officer which had been lodged the very same afternoon as the Crown’s decision to discontinue.

Case 2

Later in 2019, this firm acted in another matter which we wrote a blog about here.

In similar circumstances to Case 1, the Crown were not ready on the eve of a Magistrates’ Court trial for an alleged assault on a neighbour, this time because they had not yet served secondary disclosure. In their Notice, the Crown’s reason for discontinuance read as follows: “The decision to discontinue these charges has been taken because there is not enough evidence to provide a realistic prospect of conviction”.

The discontinuance letter arrived at 3.45pm. By 4.00pm, we had invoked the right to revive proceedings under section 23(7) and insisted that the trial hearing remain listed. We were concerned that the hearing might swiftly be vacated by the Court otherwise. The Court obliged, and the trial remained listed. The following day in court, the Court were faced with a situation where the Crown had tried to discontinue proceedings due to ‘insufficient evidence’, but the defence were asking for the trial to proceed. It is fair to say the lay bench of magistrates were perplexed by this situation, as were the defendant’s assembled family members.

Before deciding what to do, the Prosecution advocate made a phone call to her office, whereupon she was instructed to apply for an adjournment to the trial – notwithstanding what the Crown’s stated rationale for discontinuing just hours earlier. The Crown’s attempt at getting an adjournment seemed to confirm our fear, i.e. that discontinuance was purely a device to achieve more time to prepare for trial without having to obtain the Court’s permission. When this was explained to the Magistrates, and the Crown’s discontinuance letter also considered, it seemed absurd that the Crown were refusing to simply ‘offer no evidence’. The Magistrates duly refused the adjournment. The Crown could not then proceed to trial, and had to offer no evidence. This was because:

1. The Crown’s reasoning for discontinuance would be inconsistent with proceeding to trial,
2. The Crown had not responded to secondary disclosure and so the trial would not be fair, and
3. In practical terms, the Crown had already released the complainant, so he was not present.

The charge was then formally dismissed, meaning Case 2 received the ‘gold standard’ outcome. Such a dismissal cannot be overridden by the Victim’s Right to Review. So, even if such a complainant is furious with this outcome, the defendant’ position remains safe.

Case 3

In 2021, this firm represented a defendant charged with obstructing a police officer who had been trying to enter her home without a warrant. The officer purported to be exercising powers under section 17 of the Police and Criminal Evidence Act 1984, i.e. “saving life and limb”. The matter was set down for a summary trial in May 2021. We set out our defence case, in summary that the police officer was not acting lawfully. Two months prior to trial, the Crown issued a notice of discontinuance. Once again, the Crown’s stated reason was: “The decision to discontinue these charges has been taken because there is not enough evidence to provide a realistic prospect of conviction”.

After explaining the legal position and taking instructions, our client desired a formal dismissal and so invoked the right to revive proceedings under section 23(7) of the 1985 Act. Of course, the trial date was still weeks away. In April 2021, we applied to the Court under section 23(7) and asked that the case be listed for a hearing. The responses were most interesting. Firstly, the Court replied that: “This case was listed on 22/03/2021 where our Legal Advisor under their delegated powers discontinued the charge as per the CPS’ notice of discontinuance”.

It seemed there had been a very prompt ‘discontinuance hearing’ about which the defence lawyers on record were not informed.

Then, the Crown replied with: “Please note we have referred this for the attention of the reviewing lawyer, I don’t think this is the usual procedure if the Crown have already discontinued the matter”.

The Court and the Crown were either puzzled or opposed to the matter being listed under section 23(7). This might simply be because many Court and CPS staff are unaware of the right to revive. But we pursued the application and, eventually the case was listed in late April. On that occasion, the Crown’s advocate promptly ‘offered no evidence’. The charge was dismissed an so the defendant eventually obtained the ‘gold standard’.

The overall lesson is that a Prosecutor's decision to discontinue ought to be treated with caution, and a keen awareness of one’s rights. The traditional thinking to 'let sleeping dogs lie' has been rudely awoken by a greater focus on the complainant's response to a discontinuance. Specifically, the Victim’s Right to Review means that many more defendants ought to be pursuing section 23(7) revivals, to get their charges properly dismissed in court.

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