2.1 Commencing Proceedings & Police Station Procedure

2.1 Commencing Proceedings & Police Station Procedure

Methods of Commencing Criminal Proceedings

In England and Wales, criminal proceedings against an accused person may be commenced through several distinct statutory and common law mechanisms. The chosen mechanism depends primarily on whether the accused is in police custody following arrest, whether the prosecution is conducted by a public prosecutor (such as the Crown Prosecution Service, CPS) or a private entity, and the classification of the alleged offence.

Written Charge and Requisition (Criminal Justice Act 2003)

Under section 29 of the Criminal Justice Act 2003 (CJA 2003), a public prosecutor (including the CPS, police, or statutory enforcement agencies) may institute criminal proceedings against a person by issuing a written charge accompanied by a requisition.

• The written charge sets out the allegation with sufficient clarity to inform the accused of the legal and factual basis of the offence.
• The requisition requires the accused to appear before a specified Magistrates' Court at a stated date and time to answer the charge.
• For summary-only, non-custodial offences, public prosecutors may alternatively issue a Single Justice Procedure Notice (SJPN) alongside the written charge pursuant to section 16A of the Magistrates' Courts Act 1980 (MCA 1980), allowing the matter to be determined by a single magistrate sitting in private on written evidence unless the defendant elects an open court hearing.

Laying an Information and Summons / Warrant (Magistrates' Courts Act 1980)

Historically, and remaining the primary procedure for private prosecutors, proceedings are initiated under section 1 of the Magistrates' Courts Act 1980.

• A prosecutor "lays an information" before a magistrate or legal adviser setting out the alleged offence committed by the accused.
• Upon receiving the information, the court may issue a summons directing the accused to attend court, or, where statutory criteria under section 1(1) MCA 1980 are satisfied (such as an indictable offence or an offence punishable with imprisonment where the defendant's address is unknown), issue a warrant for arrest.

Charging in Police Custody (PACE 1984 & Director's Guidance on Charging)

When a suspect has been arrested without a warrant under section 24 of the Police and Criminal Evidence Act 1984 (PACE 1984) and detained at a police station, proceedings are formally commenced when the custody officer charges the suspect under section 37(7)(a) PACE 1984.

• The decision to charge is governed by section 37B PACE 1984 and the Director's Guidance on Charging (6th Edition, DG6).
• For all but minor summary-only offences (or urgent threshold test cases), the decision whether there is sufficient evidence to charge and whether prosecution is in the public interest rests exclusively with the Crown Prosecution Service, evaluating the case under the two-stage test in the Code for Crown Prosecutors (the Evidential Stage and the Public Interest Stage).

Statutory Time Limits (Section 127 MCA 1980)

Under section 127 of the Magistrates' Courts Act 1980, a Magistrates' Court must not try an information or hear a complaint relating to a summary-only offence unless the information was laid, or the written charge issued, within six calendar months from the time when the offence was committed.

• This six-month statutory bar is strict and jurisdictional for summary-only offences, subject only to express statutory exceptions (e.g., specific domestic abuse or statutory regulatory provisions extending time limits).
• Conversely, at common law, there is no general statutory limitation period for either-way or indictable-only offences; such proceedings may be instituted at any distance of time after the alleged commission of the crime, subject to the court's inherent power to stay proceedings for abuse of process where unjustifiable delay causes severe prejudice to a fair trial.

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Police Station Procedure & Detention under PACE 1984

The treatment, detention, and questioning of suspects in police custody are governed strictly by PACE 1984 and its statutory Codes of Practice (primarily Code C regarding detention, treatment, and questioning).

Role of the Custody Officer (Section 36 PACE 1984)

Upon arrival at a police station, the suspect must be brought before the Custody Officer, an officer of the rank of Sergeant or above who is strictly independent of the criminal investigation (section 36 PACE 1984).

• The custody officer must determine whether there is sufficient evidence to charge the suspect (section 37(1) PACE).
• If evidence is insufficient, detention can only be authorised under section 37(2) PACE if the custody officer has reasonable grounds for believing that detention without charge is necessary to secure or preserve evidence relating to an offence for which the person is under arrest, or to obtain such evidence by questioning them.

Fundamental Rights of the Detained Person (Code C 3.1)

Under Code C of the PACE Codes of Practice, the custody officer must immediately inform the detainee of three core statutory rights, which must also be provided in writing:

1. Right to Legal Advice: The right to consult privately with a solicitor at any time, free of charge under legal aid (section 58 PACE 1984).
2. Right to Have Someone Informed: The right to have one friend, relative, or named person informed of their arrest and location of detention (section 56 PACE 1984).
3. Right to Consult Codes of Practice: The right to inspect the PACE Codes of Practice.

Statutory Time Limits on Detention Without Charge

PACE 1984 establishes a strict statutory regime regulating the maximum length of time a suspect may be detained without charge:

• Initial Detention Period (Up to 24 Hours): Under section 41 PACE 1984, the initial maximum period of detention without charge is 24 hours, calculated from the "relevant time" (normally the time of arrival at the first police station). Reviews of detention must be conducted by an officer of at least Inspector rank under section 40 PACE (first review within 9 hours of detention, subsequent reviews at intervals of no more than 9 hours).
• Extension Up to 36 Hours (Superintendent Authorisation): Under section 42 PACE 1984, an officer of the rank of Superintendent or above may authorise an extension of detention without charge up to a maximum of 36 hours. The officer must have reasonable grounds for believing that:
  • Detention is necessary to secure or preserve evidence or obtain it by questioning;
  • The offence is an indictable offence (which includes either-way offences); AND
  • The investigation is being conducted diligently and expeditiously.
• Warrant of Further Detention Up to 96 Hours (Magistrates' Court): Under sections 43 and 44 PACE 1984, any further extension beyond 36 hours up to a maximum absolute limit of 96 hours requires an application to a Magistrates' Court for a Warrant of Further Detention (or an extension thereof). The application must be made on oath by a police officer and supported by an information, with the detainee brought before the court and provided with legal representation.

Lawful Delay of Statutory Rights (Section 56 & Section 58 PACE)

The exercise of the right to have someone informed (section 56) or the right to legal advice (section 58) may be delayed only where specific statutory conditions are satisfied:

• The offence must be an indictable offence (including either-way offences).
• Delay must be authorised by an officer of the rank of Superintendent or above.
• The authorizing officer must have reasonable grounds to believe that exercising the right will lead to one or more of the following specified statutory consequences:
  • Interference with or harm to evidence connected with an indictable offence;
  • Interference with or physical injury to other persons;
  • The alerting of other persons suspected of having committed an indictable offence who have not yet been arrested; OR
  • Hindering the recovery of any property obtained as a result of such an offence.
• Maximum Delay: The maximum permitted delay under sections 56 and 58 is 36 hours from the relevant time. Once 36 hours have elapsed, the rights become absolute and cannot be restricted.

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Caution & Silence: Section 34 CJPOA 1994

When a suspect is interviewed at a police station under caution, or when formally charged, their right to silence is qualified by section 34 of the Criminal Justice and Public Order Act 1994 (CJPOA 1994).

The Caution

Before any questioning regarding an offence, the suspect must be cautioned in accordance with Code C 10.5:

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

Conditions for Drawing Adverse Inferences under Section 34 CJPOA 1994

A court or jury may draw "such inferences as appear proper" from a suspect's failure or refusal to answer police questions or mention facts during interview, provided the following statutory conditions are met:

1. The suspect was questioned under caution or formally charged;
2. The suspect failed to mention a fact later relied upon in their defence at trial;
3. The fact was one which, in the circumstances existing at the time, the suspect could reasonably have been expected to mention when questioned;
4. The suspect was offered or provided with the opportunity to consult a legal adviser prior to or during questioning.

Protection against Denied Legal Advice (Section 34(2A) CJPOA 1994)

Under section 34(2A) of the CJPOA 1994 (inserted following European Court of Human Rights jurisprudence in Murray v UK), no adverse inference whatever may be drawn under section 34 if the suspect was denied access to legal advice prior to being interviewed at the police station. Where access to a solicitor was unlawfully delayed or denied, the prosecution cannot seek, and the trial judge must not permit, the jury to draw an adverse inference from silence.