#13791 - Remand Charging Terminating Types Of Offence - BPC Criminal Litigation (formerly BPTC) 2024/2025

Remand in Custody Time Limits

Rights of Detained Person

1. ACCESS TO PACE CODES

2. LEGAL ADVICE WITHIN 36hrs- s58 PACE (Cannot dissuade from legal advice: C:6.4, but D can refuse C:6.5) Can only be delayed to avoid interference with evidence, prevent injury or alerting suspects.

3. INFORM FAMILY/FRIEND OF ARREST - s56 PACE - Can only be delayed to avoid interference with evidence, prevent injury or alerting suspects.

Periods of Detention

Charging the Offence

The Police

• If summary only (e.g.: Criminal Damage below 5000 - usually triable either way, but this is summary only), then Charging Officer can charge without issue.

• Low value shoplifting.

• Any either-way offence anticipated as a guilty plea, and suitable for sentence in Mags with certain exceptions.

The CPS

• Crown Prosecutors will be responsible for the decision to charge and the specifying or drafting of the charges in all indictable only, either way or summary offences where a Custody Officer determines that the Threshold Test is met in any case, except for those offences specified in this Guidance which may be charged or cautioned by the police without reference to a Crown Prosecutor.

• Where a Crown Prosecutor notifies a Custody Officers that there is insufficient evidence to charge, or that though there is sufficient evidence to charge, a person should not be charged or given a caution, the Custody Officer shall give notice in writing to that person that he is not to be prosecuted (Section 37B(5) PACE).

• To charge an offence, the CPS officer must consider:

1. The Evidential Stage

2. The Public Interest Stage

Terminating Proceedings

Proceedings may be terminated by P in 3 ways:

1. Withdrawal

   1. This can be done at any time before plea, upon P’s application (Ex p Sainty)

   2. This is not an acquittal, so not an autrefois acquit.

2. No Evidence Offered

   1. Once D enters a NG plea, it is no longer possible to withdraw, so offer no evidence.

   2. Case is dismissed under s9 MCA 1980.

   3. This is an autrefois acquit bar per Pressick.

3. Statutory Discontinuance

   1. DPP can discontinue in the “Preliminary Stages” (any stage before the court beings to hear P’s evidence, of allocated to CC for trial).

   2. DPP may give notice to court stating he doesn’t wish proceedings to continue, and it will be discontinued from that notice. Reasons don’t have to be given.

   3. It may be revived on D giving counter notice under s23(7).

   4. Discontinuance does not prevent the institution of fresh proceedings, thus is not autrefois acquit per s23(9) POA 1985.

Proceedings may be terminated by D in one of two ways:

1. Sch 3 Crime & Disorder Act (CDA) 1998

   1. When? Make application either:

      1. Orally with notice; or

      2. In writing

To dismiss after the papers have been received (28 days), and before arraignment.

2. How? Sch 3(2)(2)The judge shall dismiss a charge (and accordingly quash any count relating to it in any indictment preferred against the applicant) which is the subject of any such application if it appears to him that the evidence against the applicant would not be sufficient for a jury properly to convict him.

2. Abuse of Process

   1. This must be referred to in the Defence Statement (s6A(1)(d) CPIA)

   2. It will also have to be referred to in the Advocates' Questionnaire at the PCMH in CC.

   3. A notice must be given 14 days before trial, and DS must be served at least 5 working days before trial (CrimPD1(3C));

   4. A skeleton argument must be served at least 5 working days before trial, and P must serve skeleton argument in response at least 2 working days before trial (CrimPD1(3C)).

   5. GROUND to exercise power to stay:

      1. When it is impossible to give D a fair trial:

         1. Adverse Publicity is not grounds; (R v Abu Hamza)

         2. Delayed complaint is not grounds;

         3. Generally, linked to Art 6. EG: In Olivier 8000 documents were disclosed to D a few days before trial, and case had already been adjourned twice for non-disclosure. Judge right to hold D couldn't have a fair trial without an adjournment, and a further adjournment was inappropriate. So stay for AoP was correct.

      2. When it is necessary to protect the integrity of the justice system:

         1. Entrapment (unexceptional opportunity, & luring D to offend)

         2. Torture Evidence;

         3. Can't be punished twice for offences arising out of the same or substantially the same facts - EG: In R v Beedie can't criminally prosecute for manslaughter where already charged with summary offence relating to negligent installation of gas causing death.

         4. Going back on unequivocal promise not to Prosecute where that promise was made by someone in charge of the investigation/proceedings, and relied on by D. (Estoppel!)

Types of Offences