cp149 Consents to Prosecution consultation - Law Commission

PART II
THE PROSECUTION PROCESS, PRIVATE
PROSECUTIONS AND MECHANISMS FOR
CONTROLLING THEM
1.1 In order to understand the significance of consents to prosecution, it is necessary
to explain the prosecution process. We will examine the role of the principal
prosecutor, the CPS, and consider the availability of judicial review as a way of
challenging the decisions of the CPS. We shall then go on to consider private
prosecutions and the relationship between the Law Officers, the DPP and the
private prosecutor.
1.2 We begin, however, by looking briefly at how proceedings are commenced.
COMMENCING PROCEEDINGS
1.3 A prosecution may be commenced by the laying of an information before a
magistrate or by an accused being charged at a police station. If the former, the
magistrate will either issue a summons requiring the person named to attend court
and answer to the information or issue a warrant for the arrest of the named
person, requiring him or her to be brought before the magistrates’ court. 21
1.4 An information may be laid orally or in writing, by a prosecutor in person, a legal
representative or some other authorised person. 22
It cannot be laid on behalf of an
unincorporated association such as a police force: 23
“an information must be laid
by a named, actual person and must disclose the identity of that person.” 24
The
decision to issue a summons is judicial rather than administrative, 25
and
magistrates have a residual discretion to refuse a summons if the application
appears to be frivolous or vexatious or to be an abuse of process. 26
1.5 If proceedings commence by way of charge at a police station, then usually 27
the
prosecutor is the police officer who signs the charge sheet. 28
21 Magistrates’ Courts Act 1980, s 1(1).
22 Magistrates’ Courts Rules 1981 (SI 1981 No 552) r 4.
23 Rubin v DPP [1990] 2 QB 80.
24 Blackstone, para D4.2.
25 R v Gateshead JJ, ex p Tesco Stores Ltd; R v Birmingham JJ, ex p D W Parkin Construction Ltd
[1981] QB 470.
26 R v Bros (1901) 85 LT 581; R v West London Metropolitan Stipendiary Magistrate, ex p Klahn
[1979] 1 WLR 933. See also Blackstone, para D4.3, and para 2.32 below.
27 In R v Stafford JJ, ex p Customs and Excise Commissioners [1991] 2 QB 339 it was held by the
Divisional Court on an application for judicial review that, where a person such as a
customs officer investigated an offence, arrested a person and took that person to a police
station to be charged, that officer did not thereby surrender the prosecution of the
proceedings. “Proceedings can only be said to have been instituted on behalf of a police
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