England and Wales High Court (Administrative Court) Decisions

1. The applicant, Mrs Watts, is an officer of Her Majesty's Customs and Excise. She seeks to stay as being an abuse of process two criminal summons issued against her in July 1997 by a Mr Michael Tivnan. Those summonses were in the following terms:

2. That application was heard by Mr Cooper, Metropolitan Stipendiary Magistrate, on 8 June 1998 and rejected by him. Mrs Watts seeks judicial review to quash Mr Cooper's decision, or alternatively that this court should exercise its original supervisory jurisdiction over the summonses.

3. Mr Tivnan was in October 1991 convicted at Chelmsford Crown Court of being concerned in the fraudulent importation of cannabis resin. He was sentenced to five years imprisonment. His benefit from drug trafficking was assessed at some £480,000, with a sum likely to be realised of some £72,000. Mr Tivnan applied for leave to appeal against both his conviction and his sentence, but while he proceeded, unsuccessfully, with the sentence appeal he abandoned his application for leave in respect of conviction before it could be considered by the single judge under section 31 of the Criminal Appeal Act 1968. In March 1994 the Court of Appeal refused an application by Mr Tivnan for that notice of abandonment to be treated as a nullity. However, despite his conscious decision not to appeal his conviction Mr Tivnan continues strenuously to assert his innocence of the charge of which he was convicted by the Crown Court.

4. After the arrest of Mr Tivnan, but before his trial, Mrs Watts, then Miss Outhwaite, submitted to a Mr Cook, an officer of HM Customs responsible for assessing questions of benefit from drug trafficking, a report (known in this case as the Outhwaite report) of what was known or believed by investigating officers about Mr Tivnan's activities. The Outhwaite report contained, amongst other matters to which, when he eventually saw it, Mr Tivnan took exception, the statement that

5. In due course Mr Tivnan was considered for parole. In pursuit of that consideration, information was sought by the Parole Board from HM Customs as to Mr Tivnan's background. On 3 November 1992 (a date falling within the dates alleged in the two summonses) HM Customs submitted an edited copy of the Outhwaite report, but containing the passage referred to above. Mr Tivnan saw that report when he obtained leave to inspect his parole dossier. He reacted extremely unfavourably to much of the report, and in particular to what he said was the untrue allegation that he had been involved in trafficking in cocaine. On 11 October 1993 he wrote from prison a long and abusive letter to Mrs Watts, criticising the Outhwaite report and ending

6. It is my belief that the entirety of the prosecution was motivated by malice and that has been carried forward to the "report" prepared by you.

7. Mr Tivnan was released from prison on 8 November 1993. On 6 December 1993, he issued proceedings for defamation against Mrs Watts and Her Majesty's Customs. The Statement of Claim went at length into various respects in which the version of the Outhwaite report before the Parole Board was said to be incorrect or untrue, and claimed damages for the period of his imprisonment that had come after the refusal of his application by the Parole Board, Mr Tivnan attributing the rejection of that application to the effect of the Outhwaite report. However, paragraph 11 of the Statement of Claim also said:

8. The Plaintiff will further state that the motivation behind the Defendant's making the report in the form which was presented is clearly malicious and, though it is not strictly relevant to this action and forms the substance of a separate relator action, the entire tenor of the Defendant's conduct of the prosecution and investigation of the case was conducted with malice.

9. After service of a defence a significantly revised statement of claim was served on 27 July 1994. Paragraph 11 of the original had disappeared, as had most of the detailed complaints about the Outhwaite report. The new statement of claim however set out the "cocaine" statement, which it said to have been falsely and maliciously published of Mr Tivnan, and continued:

10. In their natural and ordinary meaning the said words meant and were understood to mean (in addition to the meaning that the plaintiff had committed one offence of being knowingly concerned in the importation of cannabis resin);

11. By reason of the said publication the plaintiff has been injured in his character and reputation.

12. Further the said publication was calculated to have and did have the consequence that the plaintiff was required to suffer a substantially longer period in prison than that which he would otherwise have served.

13. An amended Defence was served on 16 September 1994. Mr Tivnan has taken no further step in that action.

14. In 1996 proceedings were brought against Mr Tivnan for breach of a restraint order made at the time of the original confiscation proceedings, and he was sentenced to and served a period of three months imprisonment for contempt of court in connexion with that order. HM Customs also became aware that Mr Tivnan had substantially larger assets than had been thought to be the case at the time of the original Crown Court trial, and commenced proceedings to increase the "realisable" amount under the confiscation order to the full benefit figure of some £480,000. That application was twice adjourned at the instance of those representing Mr Tivnan, the second adjournment being in June 1997 to 10 July 1997. The informations on which the summonses were based were laid by Mr Tivnan on 30 June 1997, and the summonses issued on 7 July 1997, three days before the Crown Court increased the amount owed under the confiscation order to the sum sought of £480,000. An appeal against that order was dismissed by the Court of Appeal on 27 April 1998.

15. We have a statement made by Mr Tivnan in support of the summonses, puzzlingly dated 15 July 1997, after the date of their issue. This is very largely in the same terms as his original statement of claim in his civil action against Mrs Watts, and includes more or less verbatim paragraph 11 thereof, which I have already quoted.

16. At the hearing before the magistrate Mr Tivnan was represented by leading counsel. This Court was given to understand that Mr Tivnan would not be represented on the present application. We were satisfied that he had been duly served with the proceedings, and also that he had been furnished with a copy of the skeleton argument before us of Mr Lawson QC and Mr Chawla who appeared on behalf of Mrs Watts. At the hearing Mr Tivnan was indeed not represented and not present, and had not sought any adjournment. There was however in court a Mr Ashdon who told us that Mr Tivnan could not be present because of family commitments, but had asked Mr Ashton to attend as his "next friend". Mr Ashton did not purport to be a "Mackenzie Friend", and in any event could not have acted in that role in Mr Tivnan's absence. He said that he would merely assist on any point of fact. Such assistance would not have been appropriate, and we proceeded in the absence of Mr Tivnan and also of the magistrate, who had taken no part in the proceedings. That meant that we heard argument from one party only, but it is perhaps unnecessary to say that Mr Lawson took steps to ensure that all aspects of the case were put before us.

17. Mrs Watts did not rely on delay in issuing of the summonses, in the sense of alleging that she could not receive a fair trial. The first complaint, as recorded by the magistrate, was that Mr Tivnan had unfairly manipulated the court process, by seeking the summonses at the very time when the proceedings for the increase in the confiscation order were in train, and also by failing to inform the justices who issued the summonses of the many and varied disputes that had proceeded them, including the civil defamation proceedings. The magistrate rejected that ground of complaint, and Mrs Watts did not directly contest that finding before us; though we will have to return to it in a different context.

18. However, the principal objection to the summonses, and the first respect in which the magistrate's decision is sought to be reviewed, was however that the summonses fell foul of what I will call the Hunter rule ( Hunter v Chief Constable of West Midlands [1982] AC 529): stated broadly for the moment, that it is an abuse of process to initiate proceedings the effect of which would be to make a collateral attack on a final decision in another competent court. The magistrate found that the summonses were intended to be and were in fact such a collateral attack on Mr Tivnan's criminal conviction. He held, however, applying the guidance given by the House of Lords in R v Horseferry Road Magistrates Court ex p Bennett [1994] 1 AC 42 [ Bennett], that either he did not have jurisdiction to, or as a matter of law should not, entertain an application on that ground. In his view, an objection on the grounds that he found to be established was exclusively a matter for the Divisional Court. He also pointed out that there was no authority as to whether the Hunter rule extended in any event to a case where the collateral attack was found to have taken the form of criminal rather than civil proceedings.

19. Mrs Watts argues that the magistrate was right in his finding that the case falls under Hunter. He should therefore have acted on that finding because he was wrong in thinking that he had no jurisdiction to entertain complaints of abuse of process on such grounds; and wrong to doubt whether such complaints could be made in respect of criminal proceedings. If we were satisfied that the magistrate was wrong on the jurisdiction point, we should require him to act on his finding that the case fell within the ambit of the Hunter rule.

20. We are indeed satisfied that the magistrate was wrong to think that he lacked jurisdiction to act on a finding of abuse of process on Hunter grounds. We do not however agree with his original finding that the summonses in this case were open to objection on Hunter grounds, whatever else might be said against them. It follows that the principal relief sought, to quash the magistrate's decision as an error of law, cannot go. We explain our decision on those two separate issues in the next following sections.

21. We go straight to the speech of Lord Griffiths in Bennett. His Lordship referred to the observation of Lord Parker CJ in Mills v Cooper [1967] 2 QB 459 at p467 that magistrates, like any court, had a right in their discretion to decline to hear proceedings on the ground that they were oppressive and an abuse of the process of the court, and continued, [1994] AC at p 63Hff:

22. Provided that it is appreciated by magistrates that this is a power to be most sparing exercised, of which they have received more than sufficient judicial warning (see, for example, Lord Lane C.J. in Reg v. Oxford City Justices ex parte Smith (1982) 75 C. App.R. 200 and Ackner L.J. in Reg. v. Horsham Justices, ex parte Reeves (Note) (1980) 75 C. App. R. 236) it appears to me to be a beneficial development and I am unpersuaded that there are any sufficient reasons to overrule a long line of authority developed by successive Lord Chief Justices and judges in the Divisional Court who are daily in much closer touch with the work in the magistrates' court than your Lordships. Nor do I see any force in an argument developed by the respondents which sought to equate abuse of process with contempt of court. I would accordingly affirm the power of the magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to exercise control over their proceedings through an abuse of process jurisdiction. However, in the case of magistrates this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures. Although it may be convenient to label the wider supervisory jurisdiction with which we are concerned in this appeal under the head of abuse of process, it is in fact a horse of a very different colour from the narrower issues that arise when considering domestic criminal trial procedures. I adhere to the view I expressed in Reg. v. Guildford Magistrates' Court, ex parte Healy [1983] 1 W.L.R. 108 that this wider responsibility for upholding the rule of law must be that of the High Court and that if a serious question arises as to the deliberate abuse of extradition procedures a magistrate should allow an adjournment so that an application can be made to the Divisional Court which I regard as the proper forum in which such a decision should be taken.

23. It will be recalled that the "abuse" complained of in Bennett was of a very particular nature, (allegedly) involving not specifically unfairness within the proceedings, but rather misconduct and indeed law-breaking by public authorities in bringing the defendant within the jurisdiction at all. As Lord Griffiths indeed said, it was something very different from abuse affecting what his Lordship called domestic criminal trial procedures.

24. On the basis of these observations, and with other authority in mind, the law as to jurisdiction over allegations of abuse in magistrates court cases is in our view as follows:

25. We are fortified in these conclusions by the fact that it is well settled that a magistrate, when considering whether to issue a summons, has jurisdiction

26. We have not overlooked that, as Mr Lawson very properly reminded us, it would appear that in the unreported case of R v Barnet JJs ex p R (10 November 1994) this court accepted, on the basis of Bennett, that the magistrates did not have jurisdiction to consider allegations of abuse based on "bad faith", as exemplified by the Hunter rule. That was however only a matter of assumption, in a case where the point does not appear to have been the subject of argument, and certainly not of the close attention that it has received before us; any holding to that effect would in any event have had to be obiter; and, we have to say, at least in respect of bad faith generally stated, such a conclusion was contrary to the general assumptions made in Bennett. We are not in my view constrained in any way by Barnet JJs.

27. We are therefore of opinion that the magistrate was wrong to consider that he did not have jurisdiction to entertain a complaint of abuse on Hunter grounds. Had he merely decided not to exercise an accepted jurisdiction (category 4 above) his decision would be unlikely to be open to challenge in this court. However, he held as a matter of law that he could not entertain the complaint: and that, being an error of law, is open to correction by this court.

28. It therefore follows that if the magistrate was right in thinking that the present case infringed the Hunter rule he should have acceded to the application to stay the proceedings for abuse of process. The problem about the magistrate's conclusion is, however, that, although he appears to have held that the effect of the proceedings under the summonses would be to mount a collateral attack on Mr Tivnan's convictions, it is difficult or impossible to see that that would in fact be so. In order to demonstrate that point, we must first remind ourselves of what is meant in this context by "collateral attack".

29. Lord Diplock in Hunter found the principle to be stated in the judgment of AL Smith LJ in Stephenson v Garnett [1898] 1 QB 677 at pp 680-681:

30. The second proceedings must, therefore, seek an answer to the question or legal issue that has already been determined in the first proceedings. But the nub of the complaint about the summonses in our case is that Mr Tivnan by them says that he has been wrongly accused of trafficking in cocaine. For Mr Tivnan to establish by the proceedings under the summonses that he was not a cocaine dealer would in itself say nothing about his activities with regard to cannabis; and therefore the successful conclusion of the second proceedings would not contradict the result of the first proceedings.

31. Mr Lawson in effect accepted that that was so. He however argued that the Hunter rule was not so narrowly limited. It extended also to cases where the intent of the second set of proceedings was to attack an earlier decision, even if the decision in the second set of proceedings would not in fact have the effect of contradicting the first decision. He relied in the first instance on the formulation of Lord Diplock in Hunter, [1982] AC at p 541B:

32. The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction

33. In our case it was conceded by leading counsel on behalf of Mr Tivnan before the magistrate that Mr Tivnan's objective in bringing the summonses was to "clear his name". The magistrate was for that and other reasons fully justified in finding, as he did, that

34. We cannot however agree that that is enough to engage the Hunter rule. In our view that ground of abuse of process is based on the effect of the second set of proceedings, rather than on the intention with which those proceedings are brought. Mr Lawson very properly accepted that the observation of Lord Diplock quoted above was not conclusive on this point. He therefore took us to other authority in which the content of the Hunter rule has been discussed. That authority does not assist him. In Walpole v Partridge & Wilson [1994] QB 106 the plaintiff, who had been convicted before the magistrates, sued the solicitors who had acted for him in connexion with a proposed appeal to the Crown Court for failure to lodge such an appeal. The solicitors applied to strike out the action, citing Hunter. The Court of Appeal rejected that objection because, per Ralph Gibson LJ at p 118E,

35. It would therefore seem to follow that the second proceedings must be in fact and effect, and not merely in intention, a challenge to the finding in the first proceedings.

36. That also appears to have been the view of the Court of Appeal in a subsequent case where a plaintiff convicted of a criminal offence again sought to sue his solicitors for negligence in the conduct of the criminal trial. In Smith v Linskills [1996] 1 WLR 763 the plaintiff said that his object in bringing the proceedings was not to re-open the original conviction, but to recover damages. The Court of Appeal however held, per Bingham MR at p768, that

37. It is, however, plain that the thrust of his case in these proceedings is that if his criminal defence had been handled with proper care he would not, and should not, have been convicted. Thus the soundness or otherwise of his criminal conviction is an issue at the heart of these proceedings. Were he to recover substantial damages, it could only be on the basis that he should not have been convicted....It is certainly true that in his speech in Hunter's case, at p 541E, Lord Diplock attached considerable significance to the ulterior purpose which lay behind the proceedings brought by the intending plaintiff in that case. We have no doubt at all but that the existence of such an ulterior motive provides a strong and additional ground for holding proceedings to be an abuse. The question is whether such an ulterior motive is a necessary ingredient of abuse.

38. The Court of Appeal held that it was not. In so doing the court cited extensively from the judgment of Ralph Gibson LJ in Walpole's case, and in particular his Lordship's observation at p120H that

39. If it is clearly shown that the plaintiff's claim is a collateral attack upon a final judgment within the principle stated and applied in Hunter's case, then the simple purity of his purpose in seeking financial damages alone would not save his action

40. Even if that were not already clear, it is put beyond doubt by the explanation given by the Court of Appeal in Smith v Linskills of the considerations underlying the Hunter rule, [1996] 1 WLR at p773A ff:

41. The main considerations of public policy which underlie the existing rule are, as we understand, threefold: (1) The affront to any coherent system of justice which must necessarily arise if there subsist two final but inconsistent decisions of courts of competent jurisdiction. ... (2) The virtual impossibility of fairly retrying at a later date the issue which was before the court on the earlier occasion...(3) The importance of finality in litigation.

42. All of these considerations, and in particular the first of them, assume that the second proceedings do in fact involve the danger of a decision inconsistent with the decision in the first proceedings: rather than, as in our case, an intention to make a "collateral attack" in a more general sense on those first proceedings. That conclusion is wholly consistent with, indeed is dictated by, the rationale of the Hunter rule drawn by Lord Diplock from the judgment of AL Smith LJ in Stephenson v Garnett .

43. The magistrate was, therefore, wrong in concluding that the summonses fell foul of the Hunter rule in its true formulation.

44. It is not therefore possible for this court to reverse the magistrate's decision, even though he was wrong as to the ambit of his jurisdiction. We have therefore to go on and consider whether in this case we should exercise the supervisory jurisdiction of this court, to decide whether, as it is put in paragraph 5 of the ground set out in Mrs Watts' form 86A, citing Lord Lowry in Bennett [1994] 1 AC 42 at p74G,

45. We have no doubt that the summonses fall under that condemnation. The principal reason for so concluding is that, by admission made by leading counsel on behalf of Mr Tivnan and recorded above, they have been issued with an ulterior motive, to clear his name rather than to bring the alleged criminals to justice. Although such a motive does not, as we have demonstrated, of itself engage the operation of the Hunter rule, it does, potentially, give rise more general issues of abuse of process. We are far from saying that a desire to clear the prosecutor's name would always be open to objection. To cite the example suggested during argument by Collins J, if a man thought that he had been convicted on the basis of perjured evidence by Mr A, it would be open to him to prosecute Mr A for perjury committed in an unconnected case, in order to seek to demonstrate Mr A's general unreliability. That, however, is not this case. Mr Tivnan thinks that these proceedings will directly undermine his earlier conviction, and has that as his motive. But if Mr Tivnan wished to do something about his earlier conviction, he had his right to appeal, and to carry that appeal through to the end of its process. That is what he consciously decided not to do. It is wholly inappropriate now, some three or more years later, to try to use collateral criminal proceedings for the same purpose. That that is Mr Tivnan's purpose is demonstrated not only by the admission made on his behalf, but also by the use in his criminal proceedings of the allegation of earlier malice, quoted above; and by letters that he wrote to HM Customs immediately after the issue of the summonses demanding, in his capacity as prosecutor, a very wide range of documents, and facilities for interrogation, that had very little to do with the criminal acts of which he accused Mrs Watts, and very much to do with the events leading up to his own conviction.

46. The summonses are further abusive because Mr Tivnan has delayed in issuing them for some four and a half years after he knew of the matters complained of. As we have said, it was properly conceded on behalf of Mrs Watts that that delay did not affect the possibility of there being a fair trial of the summonses. It is however an abuse to commence civil proceedings in respect of an alleged libel, fail to prosecute those proceedings with anything remotely like due diligence, and then issue criminal proceedings that in respect of one summons in fact and in respect of the other summons in effect ventilate the same complaint as the civil proceedings. That is a further and separate reason why these proceedings should not be permitted to continue.

47. We accordingly have no doubt that the summonses are an abuse of the criminal process. At a time where it appears that the bringing of private prosecutions is to be facilitated (See Law Commission Report No 255, Consents to Prosecution (1998), we do well to remind ourselves that a private prosecutor such as Mr Tivnan is still a prosecutor, and subject to the same obligations as a minister of justice as are the public prosecuting authorities. We think that if the public prosecutor had brought proceedings in anything like comparable circumstances to those in which the summonses were issued it would have been thought self-evident that they should be stayed. For the reasons set out above, that should be the fate also of these summonses.

48. We would therefore order, in the exercise of the supervisory jurisdiction of this court, that the summonses be stayed as an abuse of the criminal process.

49. Judge addresses Counsel:

50. LORD JUSTICE BUXTON: For the reasons contained in the judgment of this court that has been handed down, copies of which are available in court, this application is allowed to the extent that the summonses are stayed as an abuse of process.

51. Are there any applications?

52. MR CHAWLA: My Lord, there is not, in fact, an application for costs, only because of the reason of the nature of the funding available to Mrs Watts.

53. MR JUSTICE COLLINS: Does anyone else want to say anything?

54. MR PLATTS-MILLS: My Lord, I could not wish to oppose that view.

55. LORD JUSTICE BUXTON: I thought, perhaps, that would be a sensible course, Mr Platts-Mills. I am very glad to see you here this morning and I am glad that that is the view.