By Darry Robinson
The Magistrate made a ruling on 2 December which has significant implications for the criminal law in Jersey.
The issue relates to the termination of proceedings. There are several methods by which proceedings may be terminated by the prosecution. Discontinuance is one option and can be based either on a lack of evidence or because it is not in the public interest to continue.
However, it is important to note that discontinuance does not prevent the prosecution from reinstituting the proceedings for the same offence at a later point in time. From the defendant’s perspective, the effect of a discontinuation is to leave the criminal case hanging over their head after the court proceedings have come to an end.
This is very different to a situation where the prosecution ‘offers no evidence’. When the prosecution offers no evidence, the charge is dismissed – and this has the same legal effect as a ‘not guilty’ verdict after a trial. The defendant cannot then be prosecuted for the same offence again unless further evidence, sufficient to provide a realistic prospect of conviction, subsequently comes to light.
When issued with a notice of discontinuation, the defendant has a right to insist that the prosecution continues. Defendants tend not to exercise this right unless they feel, in doing so, they can force the prosecution to offer no evidence in court, thereby having the case dismissed. Giving a notice of discontinuation creates jeopardy for a defendant in circumstances where they have not received the prosecution case (disclosure of the relevant papers) before the notice has been given; this is because the defendant will not know whether their case is on the evidential cusp and forcing a continuation of the case may result in their conviction.
The UK Crown Prosecution Service (the UK equivalent of the Criminal Division of the Jersey Law Officers’ Department) published their guidance Reconsidering a Prosecution Decision towards the end of February 2021. This guidance is particularly important to the issue because it considers the right of the victim to seek a review of a decision to terminate proceedings under the Victims’ Right to Review (VRR) scheme. In Jersey no VRR scheme has been implemented, but a victim can ask for a review and if they are not happy with the outcome of the review, they may challenge this in court by way of a Judicial Review.
Importantly, the method of termination affects the victim’s position and the possible outcomes. Following a decision to discontinue proceedings, the victim is entitled to a review with the possibility of reinstitution, whereas, following a decision to offer no evidence, the victim is entitled to a review, but no reinstitution of the proceedings is possible.
The UK guidance provides examples of discontinued cases that might be reinstituted, including, for example:
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Cases where a further review of the original decision shows that it was wrong and, in order to maintain confidence in the criminal-justice system, a prosecution should be brought despite the earlier decision.
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Cases which are stopped so that further anticipated evidence, which is likely to become available in the fairly near future, can be collected and prepared.
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Cases which are not prosecuted or are stopped because of a lack of evidence but where more significant evidence is discovered later.
So why is the decision made on 2 December so important?
During the hearing which took place on 2 December, the prosecutor submitted that when a notice of discontinuation is served due to a lack of evidence, it is done as a matter of convenience to avoid the need for a court hearing.
Further, that in such circumstances the prosecution could not proceed upon being compelled to do so by the defendant issuing a notice to proceed and would have no option but to offer no evidence because any other course would conflict with the code on the decision to prosecute issued by the Attorney General. The Magistrate accepted these submissions but went further and said that the continuation of a case in such circumstances would likely constitute an abuse of process.
This approach seems to ignore circumstances where the prosecution case is on the evidential cusp and a notice to continue might be met with a trial. It seems to ignore examples of discontinued cases that might be reinstituted. Moreover, it seems to ignore the victim’s right to seek a review of a decision to terminate proceedings.
It would also mean that the relevant provision of the law allowing a defendant to compel a prosecution would be redundant, because in every case where such notice is based on a lack of evidence, the prosecution would inevitably offer no evidence.
The logical effect of the decision on 2 December is that defendants will always give notice to continue where a notice of discontinuation is based on a lack of evidence because the prosecution will respond by offering no evidence, with the charge being dismissed.
