Duplicity Under the Criminal Procedure Rules
Is the rule against duplicity the same under the CPR as it was under the former MCR? Was the High Court right to apply r 12 MCR in Euro Foods Group v Cumbria County Council eight years after it had been replaced by r.7.3 CPR? First published in the Criminal Law & Justice Weekly (2013) 177 JPN 663 and 690.
The rule under which an information may be held to be bad for duplicity was clearly stated in r.12(1) of the Magistrates' Courts Rules 1981 ("MCR") which, under the heading "Information to be for one offence only", provided:
"Subject to any Act passed after 2nd October 1848, a magistrates' court shall not proceed to the trial of an information that charges more than one offence."
Rule 12(2) MCR added that: "Nothing in this rule shall prohibit two or more informations being set out in one document."
The procedure to be adopted when an information charged more than one offence was added by the Magistrates' Courts (Miscellaneous Amendments) Rules 1993 which inserted new paragraphs (3) to (5) in r.12 MCR as follows:
"(3) If, notwithstanding paragraph (1) above, it appears to the court at any stage in the trial of an information that the information charges more than one offence, the court shall call upon the prosecutor to elect on which offence he desires the court to proceed, whereupon the offence or offences on which the prosecutor does not wish to proceed shall be struck out of the information; and the court shall then proceed to try that information afresh.
(4) If a prosecutor who is called upon to make an election under paragraph (3) above fails to do so, the court shall dismiss the information.
(5) Where, after an offence has or offences have been struck out of the information under paragraph (3) above, the accused requests an adjournment and it appears to the court that he has been unfairly prejudiced, it shall adjourn the trial."
The amended r.12 MCR was re-enacted in its entirety, on 4 April 2005, as r.7.3 in the original version of the Criminal Procedure Rules ("CPR"), the CPR 2005, where it was followed by the explanation: "[Note. Formerly rule 12 of the Magistrates' Courts Rules 1981.]".
The requirements relating to the content of informations also remained as they had been under the former MCR. Rule 7.2 CPR 2005, headed "Statement of offence", provided:
"(1) Every information laid in, or summons, warrant or other document issued or made by, a magistrates' court shall be sufficient if it—
(a) describes the offence with which the accused is charged, or of which he is convicted, in ordinary language avoiding as far as possible the use of technical terms; and
(b) gives such particulars as may be necessary to provide reasonable information about the nature of the charge.
(2) It shall not be necessary for any of those documents to—
(a) state all the elements of the offence; or
(b) negative any matter upon which the accused may rely.
(3) If the offence charged is one created by or under any Act, the description of the offence shall contain a reference to the section of the Act, or, as the case may be, the rule, order, regulation, bylaw or other instrument creating the offence.
[Note. Formerly rules 4(3) and 100 of the Magistrates' Courts Rules 1981.]"
Section 29 of the Criminal Justice Act 2003 created a new method of instituting criminal proceedings which is applicable only to public prosecutors. Under this system the public prosecutor issues a written charge, rather than lays an information, and he must issue a "requisition" requiring the defendant to appear before a magistrates' court. As a consequence, r.7.3 CPR 2005 was extended, by the Criminal Procedure (Amendment No. 2) Rules 2006, by the addition of the words "or charge" after the word "information" wherever it appeared therein. It follows that references hereafter to duplicity in an information should be taken to apply equally to duplicity in a written charge.
Major changes were made, with effect from 6 October 2008, when the Criminal Procedure (Amendment) Rules 2008 substituted a new version of Part 7 CPR 2005. The scope of the new r.7.3, headed "Allegation of offence in information or charge", covered that which had been dealt with by the original r.7.2 combined with the original r.7.3. The new text of r.7.3, which has since been re-enacted in each of the CPR 2010, 2011, 2012 and 2013, is as follows:
"7.3. (1) An allegation of an offence in an information or charge must contain—
(a) a statement of the offence that—
(i) describes the offence in ordinary language, and
(ii) identifies any legislation that creates it; and
(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.
(2) More than one incident of the commission of the offence may be included in the allegation if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission."
The new r.7.3(2) gives statutory authority to the judiciary's approach to the rule against duplicity exemplified by Lord Morris in DPP v Merriman [1973] AC 584, 136 JP 659, when he said: "The question arises – what is an offence? If A attacks B and, in doing so stabs B five times with a knife, has A committed one offence or five? If A in the dwelling house of B steals ten different chattels, some perhaps from one room and some from others, has he committed one offence or several? ... No precise formula can usefully be laid down but I consider that clear and helpful guidance was given by Widgery LCJ in … Jemmison v Priddle [1972] 1 QB 489, (1972) 136 JP 230 ... that it will often be legitimate to bring a single charge in respect of what might be called one activity even though that activity may involve more than one act. It must of course depend upon the circumstances."
Duplicity under the post 2008 r.7.3 CPR
It is significant that the former explicit requirement that an information be for one offence only has gone; it is neither in the new r.7.3 nor elsewhere in the CPR. The question therefore arises as to whether the rule against duplicity still exists and, if so, whether it has the same effect.
The rule against duplicity has of necessity applied not only to informations, but also to indictments and a good starting point is to consider the recent history of the rule as it relates to indictments. Rule 4(2) of the Indictment Rules 1971 ("IR") provided that: "Where more than one offence is charged in an indictment, the statement and particulars of each offence shall be set out in a separate paragraph called a count, and rules 5 and 6 of these Rules shall apply to each count in the indictment as they apply to an indictment where one offence is charged." It followed that there could be no more than one offence charged in any count of an indictment.
The original version of the CPR 2005 did not incorporate r.4 IR which continued in force in parallel with the CPR until 2 April 2007 when it was revoked by the Criminal Procedure (Amendment) Rules 2007 which also substituted a new Part 14 in the CPR 2005. The new r.14.2(1), which has continued in the subsequent versions of the CPR, provides:
"An indictment must ... contain, in a paragraph called a "count"—
(a) a statement of the offence charged that—
(i) describes the offence in ordinary language, and
(ii) identifies any legislation that creates it; and
(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant."
Archbold Criminal Pleading Evidence & Practice opines, at paragraph 1-216, that the rule against duplicity, formerly explicitly set out in r.4(2) IR remains "implicit" in r.14.2(1) CPR "in that the rule requires a count to contain a statement and particulars of the offence (in the singular)." Archbold's view is supported by the new r.14.2(2) which, mirroring the new r.7.3(2), ante, provides: "More than one incident of the commission of the offence may be included in a count if those incidents taken together amount to a course of conduct having regard to the time, place or purpose of commission." If a count could, in any event, include more than one incident of the commission of the offence and, indeed, include more than one offence, r.4.2(2)would be otiose. It appears, therefore, that the rule against duplicity, as it affects indictments, continues as before. But, are the changes in the new r.7.3(1), which relate to informations, similarly so inconsequential?
A new rule against duplicity
The explanatory note to the Criminal Procedure (Amendment) Rules 2008, which spawned the new Part 7 CPR, is silent as to their effect on duplicity and merely states that the new rules "revise and simplify the present rules". In the case of indictments they perhaps simplify, but do not alter the rule against duplicity. With regard to informations, if the rule is not simplified, it is certainly modified.
Starting from the premise that the words "a magistrates' court shall not proceed to the trial of an information that charges more than one offence" have been purposively removed, the other changes to Part 7 CPR make sense. Under the original version of r.7.2(1) it was required that every "information", inter alia, "describes the offence ... in ordinary language". Under its nearest equivalent, in the new version of r.7.3(1), that requirement is now that "an allegation of an offence in an information", inter alia, "describes the offence in ordinary language". It is, therefore, no longer the "information" but the "allegation" of the offence within the information which must describe "the offence" (in the singular). Adopting the sentiment of the words used in r.7.3(1), and hence not departing from their "ordinary language", they mean that an information may now charge more than one offence, albeit that (by virtue of the use of the singular) each "allegation" in the information may contain only one offence.
[NB: As from CPR 2015, r 14 CPR became r 10 CPR - r 14.2(2) became r 10.2(2). Note also that as from 5th October 2015 the Criminal Procedure Rules are to be referred to, when in abbreviated form, as the CrimPR.]
Continued in Part 2.