Legal Briefing on Laying a Criminal Information

What are your rights & duties when seeking to lay a “Criminal Information” before a Magistrates’ Court ?

As is usual in this country when looking to discover the law on one’s rights and duties in a particular matter, especially concerning procedural issues, one must first look to any relevant governing statute, thereafter any rules and/or regulations made in subordinate legislation under that statute, and finally any procedural and/or practice directions issued by the authorised rule-making body.

 

In this instance, the governing statute is the Magistrates’ Courts Act, 1980, as that has since been very extensively amended (most notably by the Criminal Justice Act 2003), and in particular section 1 thereof which deals with the “Issue of a summons to an accused or warrant for his arrest”. The most recent incarnation of the relevant subordinate legislation is the Criminal Procedure Rules, 2014 (“CPR”), and in particular Part 7 thereof which deals with “Starting a Prosecution in a Magistrates’ Court”.

 

Most fortunately, there are as yet no further particular practice directions in relation to these matters. Both of these sources of law are available on the PICAT website documents library at the following link :http://picat.online/misc-domestic/

Subsection (1) of section 1 of the 1980 Act, provides as follows:

“(1) On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justice may issue–

(a) a summons directed to that person requiring him to appear before a magistrates’ court to answer the information, or ….”

Consequently, all of the previous rules, as to the “territorial jurisdiction” of justices whereby  the power to issue summonses was often restricted in relation to offences committed only in the county in which they exercised their jurisdiction, have now been repealed. This means that effectively any justice of the peace in any magistrates’ court in England or Wales, now has jurisdiction to issue a summons in relation to an offence, committed anywhere in England or Wales, whether within the county for which he is a justice or otherwise.

Can I insist on my information being considered by a Justice of the Peace, or could it be dealt with by a Justices’ Clerk or even a Court Official instead ?

Pursuant to the provisions of the Justices’ Clerks Rules 2005 (as amended) the things as specified in the Schedule thereto, as being capable of being lawfully performed by or before a single Justice of the Peace acting alone [1], can now also be done by a Justices’ Clerk, or indeed where specifically authorised to do so, even by a Justices’ Clerks Assistant [2] (known together collectively in the CPR as Justices’ Legal Advisers), and inevitably these specifically include the laying of an information and the issue of a summons. There is no authorisation for these powers to be performed by a legal assistant who is otherwise not a Justices’ Clerk or Clerk’s Assistant, neither is there of course any such authority for such judicial functions to be performed by a mere Court Official. Consistent with this reasoning for the purposes of the CPR a “court” is defined as including both a “lay justice” and “when exercising their judicial powers …a justices’ clerk or assistant clerk.” [3]

What is the minimum that I must state in my information ? In particular must I provide all the evidence upon which I intend to rely at trial ?

PR rule 7.3 (1) provides as follows:

 

“Allegation of offence in information or charge

7.3.—(1) An allegation of an offence in an information or charge must contain—

(a) a statement of the offence that—

(i) describes the offence in ordinary language, and

(ii) identifies any legislation that creates it; and

(b)  such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant. “

There is absolutely no further requirement at this stage to provide any evidence. Prosecutors are required by the CPR to provide evidence against the accused party only after the magistrates’ court has subsequently later decided to send the case to the Crown Court for trial.[4]  We are providing a document, setting out a list of evidence upon which we principally propose to rely, by reference to the title “Statement of Prosecutor’s Evidence”, solely in order to satisfy the Attorney-General’s quite separate requirement, to be satisfied as to the so-called “evidentiary test”, as a condition precedent for the grant of his consent to institute proceedings.

Can I insist on an actual hearing, or can it all be disposed of by post alone ?

CPR rule 7.2(1)  provides as follows:

“ Information and written charge

7.2.—(1) A prosecutor who wants the court to issue a summons must—

(a) serve an information in writing on the court officer; or

(b) unless other legislation prohibits this, present an information orally to the court, with a written record of the allegation that it contains. “

(emphasis added)

Since there is here no prohibition imposed by the legislation, you are effectively given a choice as to whether to “lay” the information orally in person in court, or instead to the court office via the post.

Am I entitled to make representations, or can the court just dismiss my submissions out-of-hand without hearing me ?

CPR rule 7.4(1)  provides as follows:

“Summons, warrant and requisition

7.4.—(1) The court may issue or withdraw a summons or warrant—

(a) without giving the parties an opportunity to make representations; and

(b) without a hearing, or at a hearing in public or in private. “

So the only things that a court is empowered to do without “giving the parties an opportunity to make representations” nor even give them “a hearing” of any kind is to issue a summons, or where already issued, withdraw a summons. No provision is made, permitting the ‘court’ to refuse either representations or even a hearing, where it is minded instead to refuse to issue a summons, or is unable to do so. Which is to say that, before deciding to refuse to issue a summons, it must first allow representations to be made to it in a hearing, if the informant prosecutor seeks to do so. In this case, as we already know we need the consent of the Attorney-General before a summons can be lawfully issued, it follows that when we first appear before the Court with our Information, we know it cannot issue a summons straightaway. Instead, we are going because it is our local magistrates’ court and we would prefer, in the interests of justice, for the Court to write to the Attorney-General seeking his consent, so that the prosecution can thereafter then proceed.

RLM

August 2015

 

[1]              As to which see in particular s.1(7) of the 1980 Act

[2]              See r.3 of the said Justices’ Clerks Rules 2005.

[3]              See r.2.2(1) Definitions in the CPR 2014.

[4]              See r.9.15 in the CPR 2014