PART 12DISCONTINUING A PROSECUTION

Contents of this Part

When this Part applies

rule 12.1

Discontinuing a case

rule 12.2

Defendant’s notice to continue

rule 12.3

When this Part applies12.1

1

This Part applies where—

a

the Director of Public Prosecutions can discontinue a case in a magistrates’ court, under section 23 of the Prosecution of Offences Act 1985212;

b

the Director of Public Prosecutions, or another public prosecutor, can discontinue a case sent for trial in the Crown Court, under section 23A of the Prosecution of Offences Act 1985213.

2

In this Part, ‘prosecutor’ means one of those authorities.

[Note. Under section 23 of the Prosecution of Offences Act 1985, the Director of Public Prosecutions may discontinue proceedings in a magistrates’ court, before the court—

a

sends the defendant for trial in the Crown Court; or

b

begins to hear the prosecution evidence, at a trial in the magistrates’ court.

Under section 23(4) of the 1985 Act, the Director may discontinue proceedings where a person charged is in custody but has not yet been brought to court.

Under section 23 of the 1985 Act, the defendant has a right to require the proceedings to continue. See rule 12.3.

Under section 23A of the 1985 Act, the Director of Public Prosecutions, or a public authority within the meaning of section 17 of that Act214, may discontinue proceedings where the defendant was sent for trial in the Crown Court under section 51 of the Crime and Disorder Act 1998215. In such a case—

a

the prosecutor must discontinue before a draft indictment has been served under rule 10.1; and

b

the defendant has no right to require the proceedings to continue.

Where a prosecution does not proceed, the court has power to order the payment of the defendant’s costs out of central funds. See rule 45.4.]

Discontinuing a case12.2

1

A prosecutor exercising a power to which this Part applies must serve notice on—

a

the court officer;

b

the defendant; and

c

any custodian of the defendant.

2

Such a notice must—

a

identify—

i

the defendant and each offence to which the notice relates,

ii

the person serving the notice, and

iii

the power that that person is exercising;

b

explain—

i

in the copy of the notice served on the court officer, the reasons for discontinuing the case,

ii

that the notice brings the case to an end,

iii

if the defendant is in custody for any offence to which the notice relates, that the defendant must be released from that custody, and

iv

if the notice is under section 23 of the 1985 Act, that the defendant has a right to require the case to continue.

3

Where the defendant is on bail, the court officer must notify—

a

any surety; and

b

any person responsible for monitoring or securing the defendant’s compliance with a condition of bail.

Defendant’s notice to continue12.3

1

This rule applies where a prosecutor serves a notice to discontinue under section 23 of the 1985 Act.

2

A defendant who wants the case to continue must serve notice—

a

on the court officer; and

b

not more than 35 days after service of the notice to discontinue.

3

If the defendant serves such a notice, the court officer must—

a

notify the prosecutor; and

b

refer the case to the court.