Discontinuing a prosecution

When a prosecution may be discontinued

1. You may wish to discontinue a prosecution before or during the trial. This might arise where, for example, it is clear that there is no longer a realistic prospect of obtaining a conviction.

2. An information should not be withdrawn because the defendant claims that, by the time of the hearing, any necessary work to comply with legal requirements will have been completed.

3. The prosecutor has the right to discontinue the prosecution at any time before trial or up to close of the prosecution case. After that time, the prosecution can only be discontinued with the consent of the court. 1

How a prosecution may be discontinued

4. You may discontinue a prosecution by:

  • withdrawing all charges; or
  • offering no (further) evidence.

Withdrawing one or more charges

5. Where several informations are laid, the defendant may indicate a willingness to plead guilty to one or more of the charges if others are withdrawn. This is one form of plea bargaining. Withdrawal of some of the charges may be appropriate, for example, where you have laid alternative informations and wish to proceed on only one of them (see Selection of charges and mode of trial). However, in considering whether such a course would be appropriate, you should follow the guidance below. You must get the agreement of the Approval Officer before responding to the defence or withdrawing any charge(s).

6. Decisions on charges must be made in accordance with the Code for Crown Prosecutors 2. You must consider whether what is suggested by the defence is in line with the Code and only accept a plea to a reduced or less serious charge if the court would be able to impose a sentence in respect of the remaining charges that reflects the seriousness of the offending, particularly when there are aggravating features.  You should never accept a plea because it is convenient to do so. 3

7. In addition, the Attorney General has issued guidelines on the acceptance of pleas when a case is listed for trial.4

8. The decision whether or not to accept a plea from the defence rests with the prosecutor. However, where there is a victim or bereaved family, you should, where possible, explain the position to them and take into account their interests, and any views they expressed, when deciding whether it is in the public interest to accept or reject the plea.5

9. You should bear in mind that the basis on which the decision was taken should be transparent and you should be prepared to explain the reasons behind the decision. Such an explanation may have to be given by the prosecution advocate in open court. It is therefore important that you record your reasons for recommending acceptance or rejection of the plea to the Approval Officer.

10. Magistrates may suggest at trial that an information should be withdrawn, for example, where they propose to convict on a number of other charges. You should consider the guidance above in deciding whether such a course of action would be in the public interest. In certain circumstances, there may be good reason to do so, for example, where the information was laid as an alternative.

11. If you simply fail to prove an offence at court, you should not seek to withdraw the charge, but should leave it for the magistrates to dismiss.

12. If you intend to withdraw a charge at court, you should inform the legal adviser of your intention before the court convenes. At the hearing, you should formally notify the court that you wish to withdraw the charge in question.

Offering no evidence

13. The prosecution may decide, before the trial begins, to offer no evidence on one or more of the charges. In exceptional cases, it may be appropriate to offer no further evidence after a trial has commenced (but before the prosecution case has closed – see above). For example, where the main prosecution witness gives hostile evidence, and the prosecution can offer no supporting evidence on which a court could convict, there may no longer be a realistic prospect of obtaining a conviction.

14. You should inform the court that you do not wish to offer any (or any further) evidence. The magistrates will then dismiss the charge.

Footnotes

  1. R v Grafton [1992] 4 All ER 609. Back
  2. Code for Crown Prosecutors. Back
  3. Para 9.2 of the Code for Crown Prosecutors. Back
  4. Attorney Generals Guidelines on the Acceptance of Pleas and the Prosecutor's Role in the Sentencing Exercise. Back
  5. See para 9.3 of the Code and para B3 of the Attorney General's Guidelines. Back
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Updated 2021-08-27