Director of Public Prosecutions v McFarlane [2019] EWHC 1895 (Admin)
This was an appeal by way of case stated by the District Judge asking whether she was right to hold that two charges of wilfully obstructing police officers were time barred as proceedings had not been instituted in time.
The appellant was arrested and charged on 4th July 2018 with resisting PC Tranter, following a not guilty plea the case was listed for trial. On the trial date in October the charge was amended from resisting to obstructing, neither party was ready for trial and it was adjourned to 6th December. On 16th November the CPS sent the court and defence solicitors additional charges of wilfully obstructing two different officers and that the CPS would not be proceeding with the charge against PC Tranter.
It was submitted by the prosecution that the email to the defence solicitors was sufficient and that the additional charges had been laid in time in accordance with s127 of the Magistrates Court Act 1980. The prosecutor was unaware of the procedure laid out in s29 of the CJA 2003 and thought the court would notify the defendant. The defence submitted that any additional charge was required to be served on the person concerned and as they had not been it was too late to proceed. The District Judge ruled that as the additional summary offences had not been served on the defendant in accordance with s29(3) they were now time barred.
Held: there were two methods of commencing summary proceedings, laying an information or by issuing a written charge under s29. The District Judge took the view that the document attached to the CPS mail was a written charge and the CPS failure to issue and serve a requisition rendered the commencement of the proceedings invalid. Part 4 of the Criminal Procedure Rules permits service of a charge on a person’s legal representatives by email, if the document was a charge it was validly served, the non-compliance with s29 was limited to the failure to issue and serve a requisition notice. The purpose of the requisition is to ensure a defendant is brought before the court, but this defendant was already before the court with a trial date fixed. The failure was a procedural defect but did not render the institution of proceedings a nullity. To the extent that such failures do cause prejudice to a defendant the court’s jurisdiction to stay proceedings as an abuse of process provides sufficient remedy. Here there was no question of any prejudice at all. The District Judge was wrong to conclude that the charges were time barred. The case was remitted to the magistrates’ court for re-listing.