26 October 2020
Not reviewed after the date of publication
We are currently investigating two offences of rape and a further offence of common assault.
Does the 6 month time limit still apply if the summary only offence is running alongside the indictable offence, or should the summary only offence be dealt with separately and then potentially used as bad character evidence?
The summary limit would still apply. Section 127 of the Magistrates Court Act 1980 provides that summary only offences cannot be tried unless the information is laid before the courts within six months of the offence being committed. Whilst some statutory exceptions allow for proceedings to be brought outside the time limits in relation to particular offences, such exceptions do not apply here. Therefore, where the evidence permits, we would advise that police charging decisions be made for the associated offence of common assault, and proceedings be instituted, in line with section 29 or 30 of the Criminal Justice Act 2003 – ensuring the time limit is honoured.
Once proceedings for the summary offences have been instituted, the offences will be sent to the Magistrates Court. It is unclear whether proceedings have already been instituted for the rape offences or whether proceedings for all offences will be commenced at the same time. Where proceedings have already been instituted, it is within the remit of court to delay the progression of proceedings, so that the offences may be dealt with together in the Crown Court due to the offences arising out of the same set of circumstances. Once ready to progress, section 51 of the Crime and Disorder Act 1988 would allow for the Magistrates courts to send the summary offence (common assault) to the Crown Court, to be dealt with alongside the rape offences.
Please note that this procedure 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 Magistrate's Court, excluding the risk of offences being dismissed. Please see the following link for further information: https://www.cps.gov.uk/legal-guidance/summary-offences-and-crown-court
If that is the case, you could seek to adduce the assault as bad character evidence as long as the offending may be admitted under the relevant gateways. For further information, please see: https://www.cps.gov.uk/legal-guidance/bad-character-evidence
Section 40 of the Criminal Justice Act 1988 empowers a judge to add particular summary offences to the same indictment for an either way / 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, which 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 together and sentenced together. Whilst only applying to specific cases, the provision does cover that of common assault. Where this procedure is followed, the relevant summary offence would be treated as if it were indictable. However, the Crown Court can only deal with the offender in a manner in which a Magistrates' Court could have dealt with him, pursuant to section 40(2) of the Criminal Justice Act 1988.