Otherwise (or additionally) she might contact the court to say she thinks the prosecutor might have made an error of law and to ask how to ask the court to consider this prior to entering a plea.
I have refrained from posting in this thread so far, but given the procedural complexity of this case and some of the (potentially dangerous) misapprehensions that are being posted I have a few points to make.
First of all, the prosecutor has not made an “error of law”. The approach in a case where a prosecution is brought following a first stage penalty fare appeal is to make a plea in bar to seek a stay of proceedings.
However, this must be done whilst the proceedings are still live
which is not the case here i.e. there is nothing to be stayed.
If the case is not live then This means that it is necessary
to succeed on the section 142 application to rescind the order of conviction before making the plea in bar, although the bar on prosecution will be relevant to whether the section 142
application to rescind is granted.
A statutory declaration under section 16E might also be considered post conviction, although for someone based overseas there is some complexity around procuring this.
Specifically, she might want to take advice about applying to the court to stay proceedings as an abuse of process on the grounds that the train company has already imposed a civil penalty upon her in respect of this incident and so to prosecute additionally on what are the very same facts would amount to double jeopardy (double punishment in this context)
This “double jeopardy” line of argument is without legal merit and would be an unreasonable waste of court time.
and furthermore, failing that, the regulations under which that civil penalty was imposed explicitly provide that there are no circumstances in which a prosecution for the offence on the SJPN can be brought should she have filed an appeal against the penalty and should that appeal have been decided, as it has been, as evidenced by the letter.
This evidence needs to be adduced to the court
in support of the section 142 application. An MG11 witness statement (lodged in process and intimated to the prosecutor in advance of the hearing) explaining what happened, the relevant dates and exhibiting the appeal decision letter would be eminently suitable for this purpose.
If the court accepted the first leg of the argument, before 'furthermore', that might lead to implications for others more broadly and the train company might seek to appeal and the legal costs could begin to mount up.)
As above, there is no merit in this “double jeopardy” argument.
Perhaps SJP works differently (and I couldn't track down the relevant procedural documentation online), but I don't understand how the defendant can be required to enter a plea PRIOR to the application to stay proceedings being heard.
The ordering of the roll is a matter for the court. The accused cannot insist on a plea in bar being heard first, although it often will be. For example, had the case proceeded under the ‘normal’ process of information and summons, the accused would be expected to appear, enter a plea and then raise the plea in bar at that first hearing (unless agreement was reached with the prosecutor to drop the case prior to that first hearing). The case would then normally be adjourned off for further process and, potentially, a procedure hearing on the plea in bar before a district judge.
Once the problem is pointed out, wouldn't the normal course of events be for the prosecutor to accept the mistake and withdraw the case, but if they chose not to do this, wouldn't the application to stay proceedings be scheduled next,
Not necessarily.
and only if that failed would a plea be entered?
Again, not necessarily.
(If the application failed and the case went ahead, the defendant might decide to plead guilty; but surely they wouldn't want to plead guilty to a charge believed to be invalid in law until the matter of its legality was resolved.)
Defendants do so all the time: it’s called plea bargaining.
The SJP system is defined in sections 16A and onward of the Magistrates Court Act 1980. Under section 16A (1) (d) (ii) of the Act, a defendant may send the designated court officer a notification that they do not wish to be tried under the SJP, in which case the case reverts to the normal magistrates court system and a summons is issued to appear in the traditional way.
Correct, although in this case section 16A(1)(d)(ii) is not available because the time period has expired.
Four steps need to be followed and successfully completed by the accused in the first instance.
If already convicted in absentia:
- A successful section 142 application to rescind the order of conviction.
- As soon as that order is rescinded, lodging a section 16E statutory declaration with the court together with an application for an extension of time to lodge it (if necessary) on account of the accused’s overseas residence outwith the jurisdiction.
- A written notification of an intention to plead not guilty and objecting to being tried under section 16A.
- An application for an adjournment to a pre-trial hearing at which the plea in bar will be dealt with prior to a plea being taken.
All of this should be intimated in writing in advance to both the court and the prosecutor.
If still within the original response period for the SJPN, only steps 3. and 4. need be done.
This is most commonly done by indicating the “not guilty” option on the SJPN, but that does not constitute actually pleading not guilty, which can only be done in person.
Correct.
