cp149 Consents to Prosecution consultation - Law Commission

notice to the contrary. 102
A notice of discontinuance does not preclude the
institution of fresh proceedings on a later occasion. 103
Take over and offer no evidence
1.43 The power of the CPS to take over a case and offer no evidence is now beyond
doubt. In Turner v DPP, 104
the High Court held that the DPP had properly
exercised his discretion in taking over a private prosecution brought by a convicted
robber against his accomplice, when the accomplice had given evidence in the
robber’s trial on the basis of an undertaking from the DPP that he would not be
prosecuted for his part in the robbery. The DPP was held to have been acting in
the public interest.
1.44 The reasoning in Turner was confirmed by the Court of Appeal in Raymond v
Attorney-General: 105
The Director will … intervene in a private prosecution where the
issues in the public interest are so grave that the expertise and the
resources of the Director’s office should be brought to bear in order to
ensure that the proceedings are properly conducted from the point of
view of the prosecution.
On the other hand there may be what appear to the Director
substantial reasons in the public interest for not pursuing a prosecution
privately commenced. 106
1.45 Nevertheless, it appears that the power to take over a private prosecution and offer
no evidence will be exercised only rarely. The High Court in Turner considered
that it would be an improper exercise of the power to take over a prosecution to do
so with a view to offering no evidence unless the circumstances were exceptional,
like those in Turner.
Take over and withdraw
1.46 In addition to discontinuance, the CPS has the power to take over and withdraw
the proceedings. The existence of such a power was challenged in Cooke v DPP
and Brent JJ, 107
in which it was argued that the discontinuance power under section
23 was the only way in which the CPS could terminate a case. The question for
the court was whether the 1985 Act supplemented or replaced the pre-1985
powers of a prosecutor to terminate proceedings. The court held that the CPS’s
common law and statutory powers existed side by side.
102 POA 1985, s 23(7).
103 POA 1985, s 23(9).
104 (1979) 68 Cr App R 70.
105 [1982] QB 839.
106 Ibid, at p 847A-C, per Sir Sebag Shaw.
107 (1992) 156 JP 497.
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