England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		11th September 2006

1. MR JUSTICE SILBER:

I INTRODUCTION

2. This application raises the question of how magistrates should approach and resolve applications to issue summonses for private prosecutions after the Crown Prosecution Service had discontinued a prosecution in respect of the same conduct. Mr James Turner QC, counsel for the claimant, has contended in three separate decisions that errors have been made. He also submits that the law on this issue as set out in Stones' Justices Manual and in Archbold is inaccurate or misleading.
3. With permission granted by Newman J, Ian Charlson ("the claimant") seeks to quash three decisions which were made after he had laid information before magistrates requesting them to issue summonses against Victoria Walsh, who is the interested party in these proceedings.

II CHRONOLOGY

4. The background to these claims is a tragic accident which occurred on 19 August 2004 when Harry, the claimant's 3- year-old son was struck and killed by a car driven by the interested party at a pelican crossing on the A3 Farnham Road in Guildford.
5. The Crown Prosecution Service initially issued proceedings by way of summonses against the interested party alleging that she had driven without due care and attention at the time of the incident. At the inquest into Harry's death, the Coroner declined to make any findings of fact as to the state of lights of the crossings. Furthermore, he specifically refused to decide any issue of criminal liability in the matter. On 13 May 2005 the Crown Prosecution Service wrote to the claimant saying that they were discontinuing the criminal proceedings against the interested party.
6. The solicitors for the claimant then laid information and applied for a summons to Guildford Magistrates' Court that the interested party had caused the death of Harry by her dangerous driving on 19 August 2004. The decision of the magistrate who dealt with this application was given on 3 October 2005 and it was to refuse to issue the summons. That is the first decision which is being challenged.
7. The claimant took further advice and then in February 2006, he decided to make a further attempt to institute proceedings as by then confirmation had been obtained from eyewitnesses to the accident that they would give evidence in criminal proceedings. The application to issue summonses was made on 4 April 2006 to the South Western Magistrates' Court. On that day they issued summonses for careless driving and for causing death by dangerous driving against the interested party. Unfortunately, due to a misunderstanding, the magistrates were not told by counsel for the claimant that the Guildford Magistrate in the first decision had refused to issue a summons.
8. The magistrates were later told of the first decision of the Guildford Magistrate, whereupon they decided to withdraw the summonses. They suggested that the proper course was for the matter to be remitted to Guildford Magistrates' Court for their reconsideration. The decision of the South West Magistrates to withdraw the summonses is the second decision which is being challenged on this application.
9. The claimant then approached Guildford Magistrates with a request that they re-list his application so that the summonses against the interested party could be issued. On 3rd May 2006 they responded and they stated that they would not re-list the matter and that is the third decision under challenge.
10. The defendants to these applications are the Guildford Magistrates in respect of the first and third decisions, while the South Western Magistrates are the defendants in respect of the second decision. None of the magistrates have either been present or represented at the hearing before me.
11. The interested party strongly opposed permission at the oral hearing before Newman J, but she has neither been represented nor been present at this hearing. I have, however, had the benefit of written submissions from the solicitors for the interested party, in a letter dated 4 September 2006. This was prepared after those solicitors had obtained the advice of leading counsel. Those submissions accept that the first decision is flawed but they do not put forward any positive defences to the challenges to the second and third decisions.

III THE RELEVANT PRINCIPLES

12. Before considering the challenges to the respective decisions, it is appropriate to identify the principles which determine how magistrates should decide whether to issue summonses for private prosecutions after the Crown Prosecution Service have abandoned a previous prosecution. In section 1(1) of the Magistrates' Court Act 1980, it is stated that:

"On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justices may issue--

(a) a summons directly to that person requiring him to appear before a magistrates' court to answer the information..."

13. The right of an individual to bring a private prosecution has long been established. For example, the Royal Commission on Criminal Procedure 1981 (Command Paper 8092) referred to the retention of the right of private prosecution as being "an effective safeguard against improper inaction by the prosecuting authority". This passage was quoted with apparent approval by Laws LJ in R v DPP ex parte Duckenfield [2000] 1 WLR 55 at 67F.
14. The basic approach to the issue of summonses was explained by Lord Widgery CJ in R v Metropolitan Magistrates ex parte Klahn [1979] 1 WLR 934, when he said at page 935G, in relation to the matters to be considered by a magistrate when deciding whether to issue a summons:

"It would appear that he should [that is the magistrate] at the very least ascertain: (1) whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present; (2) that the offence alleged is not 'out of time'; (3) that the court has jurisdiction; (4) whether the informant has the necessary authority to prosecute.

In addition to these specific matters it is clear that he may and indeed should consider whether the allegation is vexatious: see Rex v Bros... Since the matter is properly within the magistrates discretion it would be inappropriate to attempt to lay down an exhaustive catalogue of matters to which consideration should be. Plainly he should consider the whole of the relevant circumstances."

15. In section 23(9) of the Prosecution of Offenders Act 1985, it is provided that the "discontinuance of any proceedings by virtue of this section shall not prevent the institution of fresh proceedings in respect of the same offence."
16. The question of how private prosecutions should be considered was the subject of submissions in the case of ex parte Duckenfield, to which I have already referred. In that case, it was unsuccessfully contended that the Director of Public Prosecutions, having declined to prosecute, should take over a private prosecution that had been commenced relating to the same matter and then he should discontinue that prosecution. At page 64 of the judgment, Laws LJ explained that the Director of Public Prosecutions had told the lawyers representing the defendants to the private prosecution that:

"...the Code for Crown Prosecutors sets out the general principles applied by the Service when (inter alia) deciding whether to constitute a prosecution it has taken over, or whether to institute proceedings, or whether to advise the police to do so. It is correct that the CPS decided in 1997 that the evidence available at that time was not sufficient, in its view, to provide a realistic prospect of conviction...for any offence [ie the test under the code for Crown Prosecutors]. However, it does not follow that, when considering the evidence and the representations submitted by the private prosecutor, and by yourself on behalf of your client, the CPS should seek merely to identify whether there is now any new evidence sufficient to provide a realistic prospect of a conviction... It is quite possible for a private prosecution to continue, notwithstanding that the CPS is not satisfied, on the basis of its own assessment of the strength of the evidence, that the evidence would pass the evidential sufficiency test in the Code (that there should be 'a realistic prospect of a conviction'). In broad terms, the reason for this is that section 6(1) [of the 1985 Act] specifically preserved the right of private individuals and prosecuting authorities and bodies other than CPS to bring criminal proceedings."

He then goes on to say with my emphasis added that:

"Private prosecutors are not bound to apply the Code for Crown Prosecutors when deciding whether to institute proceedings, nor do the courts apply the evidential sufficiency test in the Code when deciding whether there is a case to answer.

The Service therefore recognised it is not appropriate to intervene to terminate a private prosecution without good reason."

17. The Divisional Court accepted the correctness of that approach and Laws LJ said at page 68D in respect of the contrary argument that:

"...the consequence would be that the DPP would stop a private prosecution merely on the ground that the case is not one which he would himself would proceed with. But that, in my judgment, would amount to an emasculation of section 6(1) and itself be an unlawful policy...The very premise of section 6(1) must be that some cases will go to trial which the DPP himself chooses not to prosecute."

As I have explained, Mr Turner submitted that I should not follow the passage in Stones Justices Manual for 2005 which has been repeated in similar form in the 2006 edition. The passage in the 2005 edition, at paragraph 1422 states:

"While there is no rule that a justice should never issue a summons for a private prosecution when the Crown Prosecution Service has already laid informations in respect of the same matter, it will only be in special circumstances, such as apparent bad faith on the part of the Crown Prosecutor, that the issuing of a summons will be justified."

I agree with Mr Turner and would stress that it is vital to bear in mind that the tests to be satisfied for the Crown Prosecutors before bringing or continuing a prosecution are not applicable to the private prosecutions.

18. Under the Code for Crown Prosecutors, the Crown Prosecution Service can only bring a prosecution if a case passes both the evidential test and the public interests test. A private prosecution does not have to satisfy either of these tests. It therefore follows that it is quite proper for magistrates to issue summonses for private prosecution after the Crown Prosecution Service have discontinued proceedings the criterion to be adopted by the magistrates for deciding whether to issue a summons for a private prosecution is much less onerous than the test which has to be applied by the Crown Prosecution Service in deciding whether to bring or to continue a prosecution.
19. The commentary in Stones Justices Manual is apparently based on the decision of the Divisional Court in R v Tower Bridge Magistrates' Court ex parte Chaudhry [1994] QB 340. That decision depends on its own special facts. The facts in ex parte Chaudhry were that the Crown Prosecution Service was actually in the process of pursuing a prosecution when the private prosecutor sought to bring a prosecution for a serious offence arising out of the same facts. Thus it was a case of potentially concurrent prosecutions. Kennedy LJ said on the question of the relevant considerations, when deciding whether to issue a summons in such a case, at page 347E (with my emphasis added) that:

"The magistrate should have regard to all of the relevant circumstances of which he is aware...such as whether the incident giving rise to the information which he is considering has already been investigated by a responsible prosecuting authority which is pursuing what it considers to be the appropriate charges against the same proposed defendant."

It can therefore be seen that Kennedy LJ, with whom Bell J agreed, was limiting his remarks to the case where there was already a charge being pursued against the proposed defendant. Kennedy LJ went on to say in effect that it would be oppressive for a defendant to face two prosecutions: one by the Crown Prosecution Service and one by the private prosecutor in respect of the same matter. He proceeded to say (with my emphasis added) that:

"...whilst I would not go so far as to suggest that a magistrate should never at the behest of a private prosecutor issue a summons against a defendant who, in respect of the same matter, already has to answer one or more informations laid by the Crown, it seems to me that unless there are special circumstances, such as apparent bad faith on the part of the prosecutor, the magistrate should be very slow to take that step."

It follows that the Divisional Court in ex parte Chaudhry was not referring to situations where the Crown Prosecution had decided either not to institute proceedings or not to pursue proceedings. The Court in that case was dealing with the very different and oppressive situations of potentially two on-going prosecutions arising out of one set of facts. It therefore follows that ex parte Chaudhry is not authority for the wide proposition stated in Stones Justices Manual.

20. Bearing in mind that the case for Crown Prosecutor does not apply to private prosecutions, the following principles seems to me to be applicable: (i) When magistrates are considering whether to accede to issue a summons for private prosecution, where the Crown Prosecution Service has already brought and discontinued a prosecution arising out of the same events, the magistrate should not require special circumstances before agreeing to the issue of the summons.

(ii) In that case, (ie where the magistrates are considering whether to accede to an application to issue a summonses for a private prosecution, where the Crown Prosecution Service has already brought and discontinued a prosecution arising out of the same events) the magistrates should ascertain, in deciding whether to issue a summons (a) whether the allegation is an offence known to the law and, if so, whether the ingredients of the offence prima facie present; (b) that the issue of the summonses for the offence for which a magistrate summons is needed is not time barred; (c) that the court has jurisdiction; (d) whether the informant has the necessary authority to prosecute; and (e) any other relevant facts.

(iii) In the different situation where magistrates are considering whether to accede to an application to issue a summons for a private prosecution, where the Crown Prosecution Service has already brought a prosecution which is still proceeding, then the magistrate should in the absence of special circumstances be slow to issue a summons at the behest of a private prosecutor against a defendant who already had to answer one or more prosecutions by the Crown Prosecution Service in respect of the same matter.

Before moving to the facts it is appropriate to comment on the contention of Mr Turner that the passage in the present edition of Archbold (2006) is misleading. Paragraph 1 - 259 states:

"In R v Tower Bridge Metropolitan Stipendiary Magistrates, ex parte Chaudhry [1994] QB 340... it was held that the prospect of the DPP taking over a prosecution, under section 6(2), is a relevant factor to be taken into account when deciding whether to issue a summons at the behest of a private prosecutor in a case where the matter has already been considered by a responsible prosecuting authority. Furthermore, although it is not the case that a summons for private prosecution should never be issued in a case where the CPS has already laid informations in respect of the same incident, it will only be in special circumstances, such as apparent bad faith on the part of the public prosecutor, that the issuing of a summons for a private prosecution will be justified."

This paragraph would, in my respectful judgment, require reconsideration in the light of the principles which I have sought to explain; that is essentially because it is necessary to distinguish between a case where it is sought to bring a private prosecution where there is already a prosecution by the Crown Prosecution Service in being and a case where the Crown Prosecution Service has discontinued a prosecution. As I have said, this critical difference means that the fact the prosecution does not reach the threshold set out in the Code for Crown Prosecutors does not preclude a private prosecution from being instituted if there is no prosecution by the Crown Prosecution Service in being. I now turn to the conclusion on decisions.

IV THE FIRST DECISION

21. The reasons for the first decision refusing to issue a summons were expressed in this way:

"In this matter I have been asked to issue a summons against Victoria Walsh for an offence of causing death by dangerous driving.

I have been advised that following investigation the Crown Prosecution Service has previously taken out a summons alleging driving without due care and attention in respect of the same incident and that summons has been discounted.

I have also been advised that there should be special circumstances applicable, and that I should be satisfied of these, prior to issuing a summons when the CPS have already decided not to proceed.

In my opinion there are no special circumstances in this case. There are no new statements or other evidence now, that were not known to the CPS. There is nothing before me to show that the CPS were acting in bad faith and I find therefore that there are no valid circumstances to justify the issue of a summons as sought."

Mr Turner complains that this decision is wrong because, first, the test for determining if a private prosecution can be brought, after a failed Crown Prosecution Service prosecution, is not whether there are special circumstances in the sense of new evidence or new statements which were not before the Crown Prosecution Service. As I have already explained, the criterion for bringing a private prosecution is much lower than that for a prosecution brought by the Crown Prosecution Service as the Code for Crown Prosecutors does not apply to a private prosecution. Thus, in my view, the first decision has to be quashed and indeed the solicitors for the interested party do not suggest otherwise.

In all fairness to the magistrate who made the first decision, she apparently followed what was said in Stones' Justices Manual.

The effect of quashing the first decision is that if requested to do so by the claimant, the magistrate should consider, in accordance with the principles which I have explained, whether or not to issue a summons against the interested party.

V THE SECOND DECISION

Mr Turner challenges this decision which was to withdraw the summons once it was drawn to the attention of the magistrates that the Guildford Magistrate had refused to issue a summons. The reason for the decision of the magistrates was that:

"We accept the burden of the observations made by Ms [Burn] [who was counsel for the private prosecutor] that this court has jurisdiction to issue these proceedings and the fact that the same application has been refused by the Guildford Bench is not binding. We do however have a discretion whether or not to issue proceedings at this court. It is a relevant and legitimate factor for us to consider that another court has refused the application. This is not binding but we do find it persuasive. We are of the view that the correct solution for the informant is to invite the Guildford Bench to revisit the issue."

Mr Turner contends this decision was flawed on the grounds that the original decision, namely the first decision, was also flawed.

In my view, although the magistrates said that the decision of Guildford Magistrates was "not binding" but "persuasive", it appears to have been the determinative and overriding factor. The South West Magistrates failed to take account of the steps which had been stated by Widgery LJ in the case of ex parte Klahn, to which I have referred, and which should have been taken. Thus it follows that the second decision has to be quashed.

I do not need to consider the additional argument of Mr Turner as to whether the magistrates could have of their own volition withdrawn the summonses after they had been issued.

THE THIRD DECISION

The Guildford Magistrates were asked by the claimant's solicitors to re-list an application to lay an information against the interested party. They refused and their letter reasons were set out in a letter to the claimant's solicitors of 3 May 2006. In that letter, the principal legal advisor to the South West Surrey Local Justices Area states that:

"It is inappropriate for the court to list consideration of this information without the provision by you of the additional details, which you are saying were not provided to the single justice on 3rd October 2005, when consideration was given for a summons to be issued for the same alleged offence.

I would point out that the laying of an information for an offence of careless driving alleged to have been committed on 19th August 2004 is well outside the time limit for summary matters in any event."

In essence the basis of the decision of the justices of the magistrate was that as the first decision was right, some further additional information was also needed before the matter could be re-listed. The letter from the solicitors for the interested party merely says:

"If it is established that the magistrates misdirected themselves as to law this point resolves itself in favour of the claimant."

22. In my view, the third decision was also wrong because the approach of the magistrate was to work on the assumption that the first decision was correct, and then to require further information before they would re-list the matter.

I consider that, as the first decision was wrong, then the third decisions was also flawed. In additional, there was no consideration of the merits as there should have been. I therefore conclude by determining that each of the three decisions has to be quashed for the reasons which I have sought to explain. The impressive determination of the claimant has succeeded.

Mr Turner indicated that if that was to be my decision he would wish to pursue the summons against the interested party for causing death by dangerous driving which had been issued by the South West Magistrates. I add that the solicitors for the interested party indicated that they will in due course argue that any proceedings against her should be stayed or dismissed.

The fallback position of Mr Turner is that the claimant should be entitled to require the Guildford Magistrates to consider whether summonses should be issued against the interested party. He also seeks and is entitled, in my view, to an order for the claimant's costs out of public funds. Thus the orders I make are that:

1. The decisions of the Guildford Magistrates of 3rd October 2005 and 3rd May 2005 are quashed.

2. The decision of South West Magistrates of 7th April 2006 is quashed.

3. If requested to do so by the claimant, the Guildford Magistrates should consider whether any summonses should be issued against the interested party in respect of the circumstances leading to the death of Harry Charlson on 19 August 2004.

4. The claimant's costs should be paid out of Central Funds.

5. Liberty to all parties to apply.

23. MISS BURNS: My Lord, we are very grateful for that judgment. I should say that the child that was killed in fact was Harry Charlson not James, so the name Harry can be substituted wherever mentioned.
24. MR JUSTICE SILBER: Could that be noted please by the shorthand writer and the changes will be made. No doubt everybody in Court has noted that.
25. MISS BURNS: Also, when your Lordship ordered that we should claim costs out of Central Funds, that being the costs of these proceedings and the courts below?
26. MR JUSTICE SILBER: Which is the court below?
27. MISS BURNS: In the Magistrates' Courts. Obviously the claimant paid for proceedings in the Magistrates' Court which proceedings now--
28. MR JUSTICE SILBER: Is there any authority on that or does Archbold deal with that?
29. MISS BURNS: Yes, Mr Turner referred your Lordship to the passage in Archbold. Certainly the passage at 6-23 of Archbold, page 897, sections--
30. MR JUSTICE SILBER: Page 897.
31. MISS BURNS: My Lord, section 17 of the Prosecution of Offences Act 1985 provides for a claimant's claim to costs of private prosecutor, to claim costs obviously in any proceedings indictable or summary "out of central funds of such amount as the court considers reasonably sufficient to compensate the prosecutor for any expenses properly incurred by him in the proceedings."
32. Those proceedings emanated out of decisions which your Lordship has quashed in the courts below and therefore we submit that the amount that the Court should consider reasonable are the costs of all the proceedings.
33. MR JUSTICE SILBER: Yes, is the word "proceedings" defined?
34. MISS BURNS: I do not know.
35. MR JUSTICE SILBER: As to phrase see 6-12.
36. MISS BURNS: Yes.
37. MR JUSTICE SILBER: "...includes (a) proceedings in any court below..." In those circumstances, I will make the order. Thank you very much.