Reinstitution of Proceedings
NOTE: This guidance should be read alongside the guidance on termination of proceedings.
Principle
Purpose of guidance
This guidance gives effect to the Attorney General's undertaking to Parliament of 31 March 1993 (at Annex A) concerning the exercise of the CPS discretion to institute, reinstitute or continue proceedings after a suspect has been informed by the police or CPS of a decision not to prosecute.
The undertaking does not affect a decision:
- to offer no evidence at committal proceedings; or
- to withdraw transfer proceedings because the court refuses an adjournment (see guidance on voluntary bills of indictment).
References in this guidance to "reinstitution" cover the institution and continuation of proceedings after a suspect has been informed by the police or the CPS of a decision not to prosecute.
Fundamental principles
There is a presumption that once a suspect is informed of a decision not to prosecute, s/he is entitled to rely on that decision. Therefore, such a decision should not ordinarily be revoked. A decision to reinstitute proceedings can only be justified in those exceptional cases that fall into one of the following categories:
i. where the decision not to prosecute was taken, and expressed to be taken, on the ground that there was insufficent evidence and further significant evidence comes to light (see section 23(9) of the Prosecution of Offences Act 1985 for the residual power to reinstitute proceedings in this category); or
ii. where special circumstances exist that require the reinstitution of proceedings to maintain public confidence in the criminal justice system.
The accused should be informed promptly of any decision to reinstitute proceedings.
Guidance
i. Fresh or further evidence
"Evidence" in this context means all evidence and unused material received by the police by the final date for consultation, prior to discontinuance. The CPS should not discontinue a case until the final date for consultation with the police has expired. It also includes material of which the police are aware but do not have in their physical possession and evidence that is not in an admissible form.
"Fresh or further evidence" means significant evidence received by the police after the final date for consultation. It excludes evidence that the police knew about or had in their possession but did not forward to the CPS until after the expiry of the final date for consultation.
The CPS may consider reinstituting proceedings on receipt of further evidence, unless:
- the defendant has been acquitted;
- the case has been dismissed; or
- the offence is summary only and the statutory time limit has expired.
It is essential to consult the police before taking a decision to discontinue a case, in order to confirm that all of the evidence in the case has been communicated to the CPS (see guidance on termination of proceedings).
When a case is discontinued in order to obtain forensic evidence and the CPS expressly indicates that proceedings are likely to be reinstituted on receipt of that evidence, the case does not fall within this category but is instead classified as "special circumstances".
ii. Special circumstances
The following are examples of "special circumstances" that may require the reinstitution of proceedings to maintain confidence in the criminal justice system:
- where proceedings were terminated expressly to obtain evidence that was likely to become available;
- where the suspect knowingly contributed to the provision of misleading information and that was a material reason for the decision to discontinue proceedings on public interest grounds; or
- where the original decision to discontinue was unjustified and a prosecution is required to maintain public confidence in the criminal justice system.
Cases involving unjustified decisions to discontinue are likely to be rare (see Attorney General's undertaking at Annex A). Discontinuance must never be approached on the basis that erroneous decisions can always be rectified by reinstitution.
In such cases, the decision-maker must be satisfied that:
- the prosecutor who originally discontinued the case made a significant error of law or fact in applying the evidential or the public interest test (although if the original error was on public interest grounds only, it may be inappropriate to reinstitute proceedings); and
- the decision was not one that a reasonable prosecutor could have made in the circumstances and so cannot be justified.
Factors to consider
Current law and policy should be applied when deciding whether to institute proceedings in order to maintain public confidence in the criminal justice system.
There is no definitive list of factors to consider when making such decisions; however, the following are potentially relevant:
- the views of witnesses;
- the views of the victim(s);
- delay; and
- potential abuse of process arguments (see guidance on abuse of process).
Serious offences are much more likely to demand reinstitution than low-level or summary only offences.
Procedure
Level of decision-making
The decision to reinstitute proceedings must be taken by a CCP (or ACCP in London).
Explaining the decision to terminate proceedings
i. Charging/reporting stage
The police must inform the CPS if they have told an accused that s/he will not be charged or reported for an offence.
The CPS should advise the police to explain to the suspect:
- that the decision was taken on the basis of available information; and
- whether the decision was taken on evidential or public interest grounds.
ii. Pre-court
If a case is discontinued before the case goes to court, the accused will be informed by notice under section 23 of the Prosecution of Offences Act 1985 (see Archbold paragraph 1-276). It is, however, advisable to consult a CCP before issuing a discontinuance notice or making an application to withdraw charges at court where it is intended to reinstitute proceedings at a later date.
The accused will then have a right to issue a revival notice (see guidance on termination of proceedings).
The accused should always be informed where proceedings have been discontinued with a view to reinstitution.
iii. Court
Prosecutors may apply to withdraw proceedings at court (refer to guidance on termination of proceedings). Prosecutors must, however, make a full endorsement of applications to withdraw and should invite the court clerk to make a full record on the court file.
The defendant must be told of the risk of proceedings being reinstituted.
Where the CPS is withdrawing proceedings because the requisite evidence is currently unavailable, prosecutors must make this clear to the court and defendant. The court and defendant must also be informed of any intention to reinstitute proceedings where proceedings are withdrawn.
Prosecutors should be able to explain to the court that the seriousness of the offence may require a future prosecution, notwithstanding the likely delay.
Proceedings cannot be reinstituted if the CPS offers no evidence and the case is dismissed in the magistrates' court.
Casework handling
A notice under section 23 of the Prosecution of Offences Act 1985 terminates proceedings for the purposes of time limits in section 127, Magistrates' Courts Act 1980. Summary proceedings must be reinstituted within the time limits specified in section 127, Magistrates' Courts Act 1980.
When proceedings are terminated in order to substitute charge(s), the new charge(s) should be laid before the original matters are terminated, to avoid the possibility of the substitute charge amounting to a reinstitution of proceedings.
Cases that are terminated with a view to reinstitution should be monitored and reviewed in order to avoid delay; otherwise these cases may be susceptible to abuse of process arguments.
Relevant links
Legal guidance on Termination of Proceedings
Prosecutors should also refer to the legal guidance on Private Prosecutions for advice on taking over private prosecutions - a form of reinstitution.
Annex A
Written Answers - House of Commons, 31 March 1993
ATTORNEY GENERAL
Mr Waterson:
To ask the Attorney General what amendment he proposes to make to the undertaking given by the Solicitor General on 25 April 1986 in relation to the reinstitution of proceedings which have been terminated, consequent upon the post of Deputy Director of Public Prosecutions being put into abeyance.
The Attorney-General:
The hon. Member refers to an assurance given during the course of the debate on 25 April 1986, at column 640, on prosecution policy.
The fundamental consideration remains that individuals should be able to rely on decisions taken by the prosecuting authorities. The policy of the Director of Public Prosecutions is that a decision to terminate proceedings or not to prosecute should not, in the absence of special circumstances, be altered once it has been communicated to the defendant or prospective defendant unless it was taken and expressed to be taken because the evidence was insufficient. In such a case it would be appropriate to reconsider the decision if further significant evidence were to become available at a later date - especially if the alleged offence is a serious one.
Special circumstances which might justify departure from this policy include:
(1) rare cases where reconsiderations of the original decision show that it was not justified and the maintenance of confidence in the criminal justice system requires that a prosecution be brought notwithstanding the earlier decision; and
(2) those cases where termination has been effected specifically with a view to the collection and preparation of the necessary evidence which is thought likely to become available in the fairly near future. In such circumstances the CPS will advise the defendant of the possibility that proceedings will be re-instituted.
In the circumstances described at 1 and 2 the decision will be taken at chief crown prosecutor level with effect from 1 April, 1993.