Discontinuance: A Prosecutor’s Get Out of Jail card?

Recent experience in London has shown that Crown Prosecutors are using discontinuance as a method of obtaining more time to prepare for trial.

In practical terms, there are two ways the Prosecution can drop a charge which has run into difficulty pre-trial.

Offering no evidence

Firstly, the Prosecution can ‘offer no evidence’ in court. This leads to a formal acquittal, akin to a not guilty verdict. In English law, the case is then as closed as it can be.  It can only be re-instigated if ‘new and compelling evidence’ comes to light under section of the 78 Criminal Justice Act 2003, which created a narrow exception to the double jeopardy principle in respect of very serious offences. The best known example of this is the 1993 Stephen Lawrence murder when, in 2012, Gary Dobson and David Norris were prosecuted for a second time due to new scientific analysis. But in the vast majority of cases, once the Prosecutor ‘offers no evidence’ it is impossible for the charge to be re-instated. The charge is dismissed by the Court. Not even the much-heralded ‘Victim’s Right to Review’ can bring it back.

Discontinuance

Secondly, there is a more flexible mechanism called ‘discontinuance’. Under section 23 of the Prosecution of Offences Act 1985, a criminal charge can be discontinued at any time. It does not require the Court’s agreement. It is different from ‘offering no evidence’ because it does not lead to an acquittal. Discontinuance does not need the permission of the court - or any court hearing at all. The charge is not dismissed, the prosecution merely ceases to continue.

There is no requirement to provide a specific reason for discontinuance, although the Crown Prosecution Service (CPS) often do so.

The key difference is that a prosecution, once discontinued, can later be re-started again on exactly the same evidence. Why would a prosecutor do that? There are essentially two reasons why a discontinued case might be re-instigated.

Firstly, the Victim’s Right to Review. A Prosecutor’s decision to discontinue, taken on the basis of insufficient public interest or insufficient evidence, can be ‘trumped’ by the Victim’s Right of Review triggering a second opinion by a new reviewing lawyer. This would not be possible had the charge been dismissed after the Crown offer no evidence.

Secondly, when evidence is reviewed which was either provided to Prosecution late, or only noticed by the Prosecution late. Here, we enter the vexed area of case management and court directions. A Prosecutor might discontinue a charge simply because her file is in a state of disorganisation and not ready for trial. Trial preparation is now strictly managed by Criminal Procedure Rules. Adjournments, particularly on the day of trial, are frowned upon. Despite the intention behind them, these strict compliance rules are often more troublesome for the Prosecution than the Defence. This is particularly so now there might be technical evidence such as bodycam footage, 999 call audios, phone records, or forensic evidence to be served. Typically, there is only about 4-8 weeks to prepare for a summary trial. Crown Court Judges and Magistrates are very reluctant to grant adjournments.

This case management culture has caused the Prosecutors' tactics to evolve, rather like a mammoth growing wool in an ice age. This firm has noticed a recent tactic of the CPS discontinuing proceedings for no other reason than they are not ready for trial. In two recent summary cases, it transpired the only reason for discontinuance the matter was because evidence which ought be disclosed to the defence had not yet been provided by police. So, rather than apply for an adjournment on the day of trial, on both occasions the Crown opted to discontinue proceedings the day beforehand. In so doing, the CPS were effectively granted themselves a ‘fresh start’ in trial preparation, having failed to comply with the disclosure timetable the first time around. In other words, the Prosecution calculated that, were they to turn up to trial and apply for an adjournment, it would be refused, leaving them with no choice but to offer no evidence’, i.e. dismissal of the charges. So to avoid running this gauntlet, the Prosecutor discontinued the charge on the eve of trial.

Of course, defence lawyers may cry “abuse of process!”, but it is not as simple as that. To establish an abuse of process the Crown must, essentially, have acted improperly. If the Crown simply discontinue the day before trial but do not give any reason for doing so, where is the impropriety? There is no criteria within in s23 for a ‘proper’ discontinuance. The discretion is wide. Abuse of process arguments might well be triggered, however, where false reasons are stated for the decision to discontinue, but not where no reason is given.

The safety net for the Defence is in section 23(7) – the right to revive proceedings. Any defendant, on receiving a notice of discontinuance, has 35 days to apply for proceedings against them to be revived. Traditionally, defendants very rarely exercise a right that instinctively seems counter-intuitive. However, if the Defence suspects that the only reason the Prosecution are discontinuing is because of trial-readiness, it can be foolish to wait even a few days. By the time you have revived, the Prosecution are ready and waiting.

The second time this firm received a Notice of Discontinuance on the eve of trial, we immediately applied to revive proceedings and insisted that the case remained listed for trial. The next day the Prosecution duly applied to adjourn the trial – essentially because they were not yet ready to provide secondary disclosure. The advocate admitted this was the only reason for discontinuing the day before. The Magistrates took a dim view of the Prosecution’s predicament, firstly because the Crown had not prepared in a timely way for trial, and secondly because the Crown had tried to use the discontinuance process to, in effect, grant themselves more time, and then re-instigate the charge once their file was shipshape.

Many defence lawyers would traditionally be reluctant to revive proceedings that have been discontinued. Too often, the instinct is to let sleeping dogs lie. This approach needs to be reconsidered. As ever, heaven knows how a person representing themselves would ever spot such a tactic.

In the era of case progression which now borders on the ruthless, where anyone applying to adjourn a trial is stalked rather like a lame antelope, it is worth us all tracking how discontinuance, and then re-instigation, is now being used as a Prosecutor’s “Get Out of Jail” card.

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