On 26 February 2021 the Crown Prosecution Service (‘CPS’) issued revised guidance on the circumstances where Prosecutors may start or restart criminal proceedings having previously informed a suspect or defendant that there will be no prosecution or that existing proceedings will be discontinued.

Sukhdip Randhawa of Kangs Solicitors considers this new guidance which appears to provide Prosecutors with a wider discretion to reinstate previously discontinued proceedings.

If you have recently been informed by a Prosecutor that court action which you were anticipating being commenced or proceeding already served against you are no longer to be pursued or you have been served with a Notice of Discontinuance which you do not understand, and wish clarification as to the exact implications of the steps taken by the Prosecutor, you should seek immediate expert legal advice.

Kangs Solicitors is recognised as one of the leading criminal defence firms in the country and is top ranked in both the leading legal directories, Chambers & Partners and the Legal 500. 

Our team can be contacted for initial advice as follows:

The Relevant Law | Kangs Criminal Defence Team

Section 23(3) of the Prosecution of Offenders Act 1985 provides that proceedings in a Magistrates’ Court may be discontinued before the start of a trial or the sending of the accused to the Crown Court. 

Section 23A(2) of the same Act allows the discontinuance of proceedings in the Crown Court at any time before the indictment is preferred.

Section 23A(5) of the Act allows the reinstitution of proceedings in respect of the same offence.

The Prosecution does not need to obtain the consent of the court. 

Although the case will not continue, the charge is not dismissed and as ‘Not Guilty’ is not recorded in any fashion, the Prosecution can be restarted or reinstated at a later date. 

There is a fundamental difference between those proceedings which are discontinued and those where the Prosecution chooses not to offer any evidence against the accused. 

In circumstances where the Prosecution chooses not to offer any evidence there will be an ‘acquittal’ with the result that there will no trial in the future unless further compelling evidence comes to light in very serious cases and which may encourage the Prosecution to take action.   

Procedure | Kangs Criminal Defence Solicitors

When issuing a Notice of Discontinuance, the CPS must inform the defendant/suspect and the court, where appropriate:

  • the reason why the case is not to be prosecuted or is to be stopped,
  • any right of the suspect/defendant to issue a revival notice,
  • the possibility that the case may be prosecuted in the future.

Proceedings cannot be reinstated in the following circumstances:

  1. The defendant has been acquitted, unless the case meets the ‘double-jeopardy’ criteria in Part 10 of the Criminal Justice Act 1988.
  2. The defendant has been acquitted, unless the case meets the ‘double-jeopardy’ criteria in Part 10 of the Criminal Justice Act 1988.
  3. The defendant has been acquitted, unless the case meets the ‘double-jeopardy’ criteria in Part 10 of the Criminal Justice Act 1988.
  4. The defendant has been acquitted, unless the case meets the ‘double-jeopardy’ criteria in Part 10 of the Criminal Justice Act 1988.

In numbers 2 and 4 above, the proceedings may be reinstated if the decision not to prosecute is reviewed and found to be wrong under the Victims Rights of Review Scheme.    

The statutory rights of the Prosecution to reinstate proceedings is qualified by two important protections for the defendant to ensure that there is no injustice done:

  • the right of the defendants to revive proceedings in the Magistrates’ Courts.
  • the court’s powers to stay any proceedings that it views as an abuse of the court’s process.

Examples of Cases Which May Be Re-Instated

Section 10 of The Code for Crown Prosecutors​ provides examples where cases may be discontinued/reinstituted including those: 

  • where a further review of the original decision shows that it was wrong and, in order to maintain confidence in the criminal justice system, a prosecution should be brought despite the earlier decision.
  • which are stopped so that further anticipated evidence, which is likely to become available in the fairly near future, can be collected and prepared.  In these cases the Prosecution will tell the defendant that the prosecution may well start again.
  • which are not prosecuted or are stopped because of a lack of evidence but where more significant evidence is discovered later.
  • involving death in which a review following the findings of an inquest concluded that a prosecution should be brought, notwithstanding any earlier decision not to prosecute.
  • which are not prosecuted or stopped because the Prosecutor is not satisfied that the full code test can be applied due to outstanding enquiries or outstanding information or material that has been requested by the Prosecutor.  These cases can be reinstated following completion of the enquiries or receipt of the information/material.
  • where the decision is taken to reinstate the case where the police fail to send a file in time for the first hearing at the Magistrates’ Courts and the court refuses to allow an adjournment resulting in the proceedings being withdrawn.
  • where the original proceedings were terminated after the decision was taken to withdraw sending proceedings because the court had refused an adjournment.
  • where the charges are dismissed by a Judge following an application to dismiss the prosecution case prior to arraignment. These proceedings can only be brought by way of a preferred voluntary bill of indictment.

When considering all of the above, Prosecutors will still have to determine whether the case in question meets the full Code test and whether it is highly likely that the court will rule that any new prosecution brought is an abuse of the process of the court.

How Can We Help? | Kangs National Criminal Defence Solicitors

If any of the contents of this article are applicable to you or you have any concern regarding any criminal proceedings which you are currently defending or anticipate being served upon you, please do not hesitate to contact us.

We welcome enquiries by telephone or email and provide initial consultation at our offices in London, Birmingham or Manchester.

Alternatively, we can provide an initial consultation by telephone or video-conferencing.

Please feel free to contact our team through any one of the following:

Sukhdip Randhawa
0121 449 9888 | 020 7936 6396 

Helen Holder
0121 449 9888 | 0161 817 5020   

Amandeep Murria
0161 817 5020 | 0121 449 9888