Summary offences: commencing proceedings and other associated matters

29 January 2021

Written by: Ruth Hartley, PNLD Legal Adviser
Not reviewed after the date of publication

Section 127 of the Magistrates Court Act 1980 requires all summary offences to be laid before the court within 6 months of them being committed, unless otherwise expressly provided in any enactment. A failure to observe the summary time limit holds the consequence of an offence becoming statute barred with the ability to prosecute, being lost.   

Whilst the time limit for summary offences is a requirement that most officers are familiar with, PNLD are often asked for advice on matters arising from the time limit, such as methods of commencing proceedings correctly and other relevant issues. Due to this, PNLD Legal Adviser, Ruth Hartley, provides a re-cap on the summary time limit, touching on some of the matters that PNLD are regularly asked to advise on.

Commencing proceedings: laying of information etc

Section 127 of the Magistrates Court Act 1980 refers specifically to offences being laid before the court.

What does the laying of information mean?

The laying of information traditionally refers to the process of providing written information to the Magistrates’ Court pursuant to section 1 of the Magistrates’ Court Act 1980, with the intention that the court commence proceedings via the issuance of a summons or warrant.

Other methods of commencing proceedings

Whilst it is still possible to commence proceedings via the laying of information, above, section 29 of the Criminal Justice Act 2003 also provides relevant prosecutors with a method of instituting criminal proceedings by written charge, without initial reference to the court being required.

For the purpose of section 29, a ‘relevant prosecutor’ includes, amongst other bodies, a police force or person authorised by a police force to institute criminal proceedings. As such, the police may institute criminal proceedings themselves by issuing a written charge, which at the same time is accompanied by a requisition or single justice procedure notice.

The police may charge for most summary offences, irrespective of the anticipated plea. There are however some exceptions to this, such as for the offence of low level criminal damage pursuant to section 1(1) of the Criminal Damage Act 1971. For a full list of exceptions, please see the College of Policing guidance on ‘charging and case preparation’.

The requirements for issuing a written charge and requisition or single justice procedure notice, are discussed further below.

Written charge and requisition: requirements

With regards to a requisition, this is an additional document which requires the person to appear before a Magistrates' Court to answer the written charge, at a future date.

Where a relevant prosecutor issues a written charge and requisition, section 29(3) of the Criminal Justice Act 2003 outlines that the written charge and requisition must be served on the person being charged. Additionally, a copy of the charge and requisition must be served on the court named in the requisition.

Written charge and single justice procedure notice: requirements

A single justice procedure notice is a document requiring the person being charged, to serve on the designated officer for the Magistrates' Court specified in the notice, a written notification stating whether they intend to plead guilty or not. Where an individual does wish to plead guilty, they must also specify in the notice whether or not they desire to be tried in accordance with section 16A of the Magistrates' Courts Act 1980, permitting for trial by a single justice on the papers.

From a policing perspective, officers need to be aware of the requirements in subsection 29(3A) and (3B) of the Criminal Justice Act 2003 which outline that:

where a relevant prosecutor issues a written charge and a single justice procedure notice, the written charge and notice must be served on the person charged, with a copy of both also being served on the designated officer of the relevant Magistrates’ Court (subsection 29(3A)).

where a single justice procedure notice is served on a person, the relevant prosecutor must at the same time, serve on the person such documents as may be prescribed by the Criminal Procedure Rules and serve copies of those documents on the designated officer specified in the notice (subsection 29(3B)).

The documents specified in subsection 29(3B) are those outlined in Part 7 of the Criminal procedure Rules, which include a document stating the allegation of the specified offence and a statement of the offence in ordinary language, containing details of any identifying legislation creating the offence, along with particulars of the conduct that constituted the commission of the offence – designed to make it clear to a defendant what they are alleged to have done.

Whilst the requirements of the legislation must be complied with, the case of Director of Public Prosecutions v McFarlane [2019] EWHC 1895 confirmed that the actual commencement of proceedings takes place when the written charge is issued, regardless whether the requisition or single justice notice are issued at the same time. However, it is common practice that the documents will usually be issued at the same time as the charge.

Does the 6 month time limit apply to these methods?

Section 30(5) of the Criminal Justice Act 2003 applies the time limit above to written charges, stating that in any Act (passed before the Criminal Justice Act 2003), a reference to the laying of information is also to be read as including the issuing of a written charge, requisition or single justice procedure notice.

When does the 6 months limit expire? 

The 6 month time limit is calculated from the day after the day on which the offence was committed and ends at midnight on the day six months later. Where offences are committed over a period of time whether continuously or intermittently, the period runs from the day after each offence is committed.

Issues arising from the time limit

As stated above, PNLD regularly receives queries from officers who have encountered unforeseen difficulties when dealing with summary offences that are subject to the time limit. Some of the most regularly encountered issues are discussed further below.

Amendment of charges by CPS

Where the police do not have authority to charge for an offence, advice must be sought from CPS. Circumstances may arise where authority is being sought to charge for an either way or indictable offence, however when CPS return the file, they have reduced the charge to an offence that is summary only.

Despite the fact that officers may not initially have anticipated being subject to prosecuting time limits on the basis they were initially dealing with an either way or indictable offence, when circumstances such as this occur, the time limit for summary offences in section 127 of the Magistrates’ Court Act 1980 must still be observed, unless expressly provided for by legislation.

As such, officers should always be mindful of this possibility when applying evidential tests and ensure that charging authority is being sought from CPS at the earliest point, to account for this risk.

Amendment of charges by the Court

PNLD have previously been asked whether it is possible for the courts to amend charges already being heard by the courts, after the time limit has passed. This specific point was dealt with in the case of R v Scunthorpe Justices ex parte McPhee and Gallagher (1998).

In this case, the defendants had been charged with robbery however the prosecution sought to apply for the information to be amended at court so that alternative charges of theft and common assault could be considered, with the defendants indicating that they wished to enter guilty pleas for the offences. The court allowed the information to be amended for the offence of theft, but not for the offence of assault stating that because the 6 month limit in section 127 of the Magistrates’ Court Act 1980 had passed, they were barred from trying the offence. The prosecution appealed against this decision.

The court dealing with the appeal clarified that it is within the remit of the court to amend a charge to allege a different offence after the time limit has ended where both offences have arisen from the same or substantially same set of facts and the amendment is considered to be within the interests of justice, having regard to a defendant’s interests and the purpose of the time limit, which may be jeopardised should an adjournment take place.

This has since been confirmed in other cases, such as R (on the application of Thornhill) v Uxbridge Magistrates’ Court (2008).

Cases involving various offences and modes of trial

There is often a misconception that when dealing with numerous offences arising out of the same set of facts, where the offences have different modes of trial, officers do not need to comply with the summary time limit. This is not the case and officers still need to ensure that they commence proceedings for any summary offence within the time frame, to ensure that the offence does not become statute barred.

Commencing proceedings for any summary offences does not mean that all related offences cannot be dealt with together at court, as it is within the remit of the Magistrates’ Court to send certain summary offences to the Crown Court, alongside other either way or indictable offences, in circumstances where the offences have arisen out of the same set of circumstances, pursuant to section 40 of the Criminal Justice Act 1988.

Section 40 empowers a judge to add particular summary offences to the same indictment for an either way or indictable offence, when the offences are found on the same facts or evidence, or form part of a series of the same character of offences, but this only applies to specific offences, which include (amongst others) -

Section 39 Criminal Justice Act 1988 - Common assault

Section 12 Theft Act 1968 - Taking a vehicle without consent

Section 103 Road Traffic Act 1988 - Driving while disqualified

Section 22 of and Schedule 2 to the Magistrates' Courts Act 1980 - Low value criminal damage

In such cases, the summary only offences must arise out of circumstances that appear to the court to be the same as, or connected with, those giving rise to one of the either way or indictable only offences being sent for trial. The purpose of this provision is to allow for all matters to be dealt with and sentenced together. 

Additionally, section 40(4) states that the Secretary of State may, by statutory instrument, allow summary offences that are punishable by imprisonment or involve an obligatory or discretionary disqualification from driving, and arising out of the same circumstances, to be added to an indictment, meaning offences can be heard together at the Crown Court.

Please note that these procedures cannot be followed when an individual has pleaded not guilty to summary offences whilst in front of the Magistrates. In such circumstances, the prosecution would have to request that the Magistrates’ Court re-list the summary offences, to be dealt with separately in the Magistrates’ Court, to exclude any risk of the relevant offence being dismissed due to the time limits having expired. 

Conclusively, it is clear that the courts take a hard line on the time limit for summary offences being observed, honoring the intention that summary offences are tried as soon as is reasonably practicable after their commission.  As such, officers should ensure they are acting with the same intention. Where there has been significant delay in dealing with an offence, the courts are permitted to inquire into any reason for delay and officers should be mindful of section 123 of the Magistrates' Courts Act 1980, which permits the court to adjourn or dismiss proceedings, where a defect in process has occurred.

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