Statutory Declarations

A lot of proceedings in the Magistrates' Court are commenced by way of the defendant being sent a summons or postal requisition.

A summons or postal requisition is deemed to have been served on the defendant if it is sent by first class or recorded delivery to their last known address, or handed to them in person.

If the defendant fails, without reasonable cause, to attend court or otherwise respond to the summons or requisition, there is a real chance that the case will proceed in their absence and, in the absence of any defence, they will be convicted solely on the prosecution version of events.

Occasionally a defendant appears before the court who has already been convicted of an offence without their knowledge. This can happen if the summons or requisition was somehow waylaid before it arrived with them - perhaps it had been lost in the postal system, or had been delivered to a former address.

If such a case is genuine, it would be unjust to lumber the defendant with a conviction when they had never had the opportunity to respond to the charge. The defendant can have the conviction and any penalty set aside my making a formal declaration that they knew nothing about the charges against them. This is known as a Statutory Declaration.

For the purposes of this article, we are only concerned about Statutory Declarations made in relation to criminal matters. Statutory Declarations can also be made in certain other circumstances.

Under section 14 of the Magistrates' Courts Act 1980, the outcome of proceedings against the defendant are void where:

• the case started with a summons or requisition,
• the defendant did not know about the case, and
• not more than 21 days after finding out about it (which time limit can be extended) the defendant delivers to the court a Statutory Declaration that he or she did not know about the case until after the trial.

If the court accepts a Statutory Declaration the original conviction will be nullified and the charge will be put to the defendant afresh. Surprisingly often the defendant pleads guilty and a new sentence is often imposed there are then. The advantage of pleading guilty is that the defendant will be credited with an early guilty plea, so won't be disadvantaged by their absence in the original proceedings.

In the event of a not guilty plea the case can be reheard by a different Bench, if the prosecution so wishes. The rehearing outcome might be the same or different to the original outcome.

Under the Statutory Declarations Act 1835, the defendant's declaration can be made before anyone who is authorised by law to hear it (e.g. a solicitor), or before any Justice of the Peace. The person who hears the declaration need not enquire into the truth of it. That person's function is limited to hearing the declaration, and certifying that he or she has done so by signing it. If the declaration turns out to be untrue, the defendant making it may be punished for perjury.

In theory a Statutory Declaration can be made before any single Justice of the Peace, but in practice they are listed to be dealt with in a normal court session.

Anyone who needs to make a Statutory Declaration should contact the relevant court office.

A copy of the relevant form is here.