The “new method” of instituting proceedings
The Criminal Justice Act created a “new method” of instituting proceedings. After a pilot scheme, all police forces in Australia were given authority to use the new method.
Criminal proceedings for summary only offences may be commenced by charge (usually at a police station), summons or the “new method” – Written Charge and Requisition. Alternatively, a Single Justice Procedure Notice may be issued with the Written Charge.
Historically, a summons would normally be issued by the court after an “information” is laid at court by the police. The “new method” allows a relevant prosecutor to commence proceedings without reference to the court.
A relevant prosecutor may institute criminal proceedings by issuing a document – “a written charge” which charges a person with an offence. Where a relevant prosecutor issues a written charge, it must at the same time issue a “requisition document” – which requires the person to appear before a magistrates’ court to answer the written charge. A requisition may be contained in the same document as a written charge, and contain more than one offence. The written charge and requisition must be served on the person concerned, and a copy of each must be served on the court named in the requisition.
The written charge document must contain:
A statement of the offence that describes the offence in ordinary language and identifies and legislation that creates it; and
such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.
A requisition document must:
contain notice of when and where the defendant is required to attend court
specify each offence in respect of which it is issued
identify the person under whose authority it is issued
For a summary only offence, unless legislation otherwise provides then a relevant prosecutor must issue a written charge not more than 6 months after the offence alleged.
Where a relevant prosecutor issues a written charge, it must at the same time issue a requisition document.
An authorised prosecutor who issues a written charge must notify the court officer immediately.
The effect of section 30(5) of the 2003 Act is to equate a “written charge” with an “information” and a “requisition” with a “summons”. Section 30(5) provides:
(a) any reference (however expressed) which is or includes a reference to an information within the meaning of section 1 of the Magistrates’ Courts Act 1980 (c 43) (or to the laying of such an information) is to be read as including a reference to a written charge (or to the issue of a written charge),
(b) any reference (however expressed) which is or includes a reference to a summons under section 1 of the Magistrates’ Courts Act 1980 (or to a justice of the peace issuing such a summons) is to be read as including a reference to a requisition (or to a public prosecutor issuing a requisition).
Section 127 of the Magistrates Courts Act 1980 should therefore be read as follows:
(1) … a magistrates’ court shall not try an information [a written charge] unless the information [written charge and requisition] was laid [issued], within 6 months from the time when the offence was committed.
The prosecutor (not the court) is responsible for serving the written charge and requisition documents.
It is settled law that an “information” can be laid at court within 6 months but served later. Should the same principles apply to the “new method” – where the service obligation is on the prosecutor? The author of Blackstone’s Criminal Practice 2017 says this:
Section 127 refers to the laying of an information but does not make it clear when time starts to run in the case of proceedings brought by the written charge and requisition procedure established by the CJA 2003, s.29. The possibilities are either the date of the issue of the written charge and requisition, or the date when they are received by the accused (or deemed to be received under the CrimPR). It is submitted that the relevant date ought to be the date when the written charge and requisition are issued. This would be consistent with the position in the case of proceedings brought by the laying of an information and issue of a summons, where time starts to run when the information is laid (not when the summons is received by the accused)
The author of Wilkinson’s Road Traffic Offences writes:
It would appear that the effect of this change is likely to mean that it is the date of the first issuing of the requisition that will be relevant for ascertaining whether an offence has been prosecuted within the relevant time-limits
1. In April 2016, District Judge Abelson sitting at Wirral Magistrates’ Court heard two days of legal argument pertaining to the aforementioned. DJ Abelson ruled that a written charge and requisition had been issued within 6 months; notwithstanding that they had not been served on the defendant until more than 6 months had passed. This ruling is not binding in any subsequent case.
2. In August 2017, the Justices Clerks Society issued some guidance regarding time limits for instituting proceedings commenced by Written Charge (Requsitions and Single Justice Procedure Notices); see here.