Author Topic: Statutory Declarations, For proceedings you weren't aware of  (Read 165 times)

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andy_foster

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What is a statutory declaration?

It is a declaration made under oath (or affirmation). In relation to setting aside a conviction in the magistrates' court it is made under either section 14 of the Magistrates' Courts Act 1980 (where the case started with a summons) or section 16E of the same Act (where the case started with a single justice procedure notice - SJPN).

When can a statutory declaration be made?

When the defendant was unaware of the proceedings, i.e. they did not know that the case was being brought against them . This will normally be because they never received or knew of the summons or SJPN. A person can know that they might be prosecuted (e.g. by receiving an NIP) but this is not the same as knowing about the proceedings.

Making a false declaration (e.g. that the defendant did not know of proceedings when in fact they did) is a serious criminal offence.

How is a statutory declaration made?

A statutory declaration has to be made before a person entitled to administer an oath. This includes lawyers (solicitors, barristers, Chartered Legal Executives, licensed conveyancers and notaries) and magistrates' courts and their officers (e.g. the court legal adviser). Most often, declarations are made in court before the magistrates. If the declaration is not made at court then it must be sent to the court within the time limit.

If the case started with an SJPN then, as well as the statutory declaration, the defendant must also serve a notice on the court stating one of the following:

1. An intention to plead guilty, along with any representations that the defendant wants the court to consider and a statement of the defendantís assets and other financial circumstances.

2. An intention to plead guilty before a full court (i.e. the defendant does not want to proceed under the single justice procedure).

3. An intention to plead not guilty.

What is the time limit?

A declaration must be accepted if it is made within 21 days of the defendant becoming aware of the proceedings. It can still be accepted outside of this time limit but the defendant will have to convince the court that it was not reasonable to serve the declaration in time.

If the court is contacted within 21 days of the defendant becoming aware of the proceedings for the purpose of making an appointment to make a statutory declaration, the court will normally accept a declaration made after the 21 day period if the only reason for the delay was a lack of availability in the court's calendar. It is however advisable to keep a record of all communications with the court, so that it can be shown the defendant contacted the court to make an appointment within the 21 day period.

What is the effect of a statutory declaration?

If the case was started by a summons then the effect is that:

1. The court must treat the summons or requisition and all subsequent proceedings as void (but not the application for the summons or the written charge with which the case began).

2. If the defendant is present in court (e.g. they have just sworn the declaration) the court will proceed as if the defendant had been summonsed to attend court that day. (The court would normally proceed to take a plea from the defendant at that point. If the plea is guilty then the court may proceed to sentence there and then).

3.If the defendant is not present then the court may issue a summons.

If the case was started by an SJPN then the effect is that:

1. The court must treat the single justice procedure notice and all subsequent proceedings as void (but not the written charge with which the case began).

2. The notice accompanying the statutory declaration will be treated as having been served in time.

3. If the notice was to plead guilty before a full court or not guilty then:

a) If the defendant is present, the court will proceed as if he had been summonsed to attend on that day. (The court would normally proceed to take a plea from the defendant at that point. If the plea is guilty then the court may proceed to sentence there and then).

b) If the defendant is not present the court must issue a summons.

This means that once the statutory declaration is accepted the conviction will be set aside (as if it never happened) and any fine, costs and points will be cancelled. It is likely that the defendant will be tried again for the offence. The defendant should think carefully whether the result of any conviction arising from being tried again (especially if they are pleading guilty) is going to be better or worse than the sentence already handed down. They should consider whether any discount for a guilty plea (normally 1/3rd) and any mitigation may offset any accurate details the court may have about their earnings - high earners may not wish to set aside the sentence already handed down.

Statutory declaration form

A copy of a form to use can be found here.

NB: This guide is for England and Wales only.
« Last Edit: June 15, 2023, 12:22:33 am by andy_foster »
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