The Discontinuance Dilemma
Discontinuance is one of the ways in which a prosecution can come to an end. But how final is this ending?
What the law says
In the Magistrates’ Court, a case can be discontinued at any point before trial (see s. 23(1) & (2), Prosecution of Offences Act 1985 – ‘POA’). In the Crown Court, they can be discontinued any time before the indictment is preferred (see s. 23A, POA).
Crucially, discontinuance is not necessarily the end of the road for a prosecution and fresh proceedings can be reinstituted in respect of the same offence in future (see s. 23(9), POA).
A defendant also has the right to ‘revive’ the discontinued proceedings if they choose (s. 23(7), POA). Although counterintuitive, this may be the right thing to do – particularly where there is a risk of reinstitution in future.
Why would I ever want to revive the prosecution against me?
The CPS’ power to discontinue a case is largely discretionary (subject to considerations about the Victim’s Right to Review and Full Code Test – which are too involved to deal with here). The CPS simply sends a Discontinuance Notice to the Court explaining which offence(s) are discontinued and why. The defendant should be told, at a minimum, that the notice of discontinuance has been sent to the Court. Reinstituting the prosecution is similarly straightforward.
The alternative to discontinuance is for the CPS to ‘offer no evidence’ in Court. This results in the effective acquittal of the defendant – the charges are dismissed. In turn, this means that reinstituting proceedings against that defendant in future will be far more difficult than in a discontinued case. If your case is discontinued, and you exercise your right to have it revived, the CPS will have little option but to offer no evidence. The CPS’ own Guidance says the following about this:
“Unless circumstances have changed significantly since the notice of discontinuance was issued, to the extent that the proceedings should now continue, the prosecution will formally offer no evidence in court.”
The inference from the above is that timing of the decision to revive proceedings is important; allowing time for circumstances to change significantly could be unwise.
In our experience, the CPS are not above discontinuing cases for logistical reasons e.g. Bodycam footage not yet provided by the police - only to reinstitute once they have solved the problem. For the reasons described above, discontinuing is much easier than applying to adjourn a trial at the eleventh hour, which defence can oppose, and the Court typically won’t grant. So, this is possibly why prosecutors prefer the discontinuance option.
Having a lawyer’s advice and assistance in such cases is important as the particular facts of individual cases will be crucial in deciding what to do. If you would like advice or assistance with any issue raised in this article, please contact our Crime and Regulatory Department on 020 7632 4300 or emailing [email protected].