England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		5 February 2008

1. LORD JUSTICE MAURICE KAY: PC 2184 Jon Jones of the North Wales Police claims that he was bitten by the defendant's dog on 14 February 2006. At the time, the officer was investigating a complaint from the defendant's neighbour that the defendant's dogs were attacking stray sheep. In due course the officer wished to commence proceedings against the defendant under section 2 of the Dogs Act 1871. Section 2 provides:

"Any court of summary jurisdiction may take cognizance of a complaint that a dog is dangerous, and not kept under proper control, and if it appears to the court having cognizance of such complaint that such dog is dangerous, the court may make an order in a summary way directing the dog to be kept by the owner under proper control or destroyed."

2. Process was initiated in the Magistrates' Court. This resulted in a number of hearings. Eventually on 25 January 2007 the Magistrates' Court decided that the proceedings were a nullity because they had been commenced by the laying of an information rather than a making of a complaint. In the present judicial review proceedings, for which permission was granted by Collins J, the Chief Constable challenges that decision.
3. Throughout the judicial review proceedings the Anglesey Justices have indicated a wish not to participate in them. Mr Ghani, the defendant, was an active participant in the proceedings on paper, in that his solicitor submitted lengthy opposition to the application for judicial review. However, Mr Ghani has not sought to make oral representations to the court, and his solicitor, whilst in attendance, does not seek to make oral representations through counsel or otherwise.
4. The primary issue in the case is whether the initiation of the process in the Magistrates' Court took the form of a complaint appropriate for a civil matter or the laying of an information, which would be appropriate for a criminal matter. It is plain that proceedings under section 2 are civil in nature and fall to be initiated by complaint rather than information, except where they relate to an alleged breach of an existing order, which was not this case.
5. I accept the submission of Mr Wells that it is only after a complaint has been validly made by a complainant that the Magistrates' Court has to consider whether or not to issue a summons, the purpose of which is to procure the attendance of a defendant. In R v Manchester Stipendiary Magistrates ex parte Hill [1983] 1 AC 328 at 342 Lord Roskill said (at page 342):

"... in their civil jurisdiction, what a magistrates' court have jurisdiction to try is a complaint, and what is required to give them that jurisdiction is that a complaint has been made to them. Their jurisdiction in criminal cases does not depend upon a summons or a warrant being issued and their civil jurisdiction does not depend upon a summons being issued."

6. The requirements for a valid complaint are formally undemanding. By rule 4 of the Magistrates' Courts Rules 1981 it is provided:

"(1) An information may be laid or complaint made by the prosecutor or complainant in person or by his counsel or solicitor or any other person authorised in that behalf.

(2) Subject to any provision of the Act of 1980 and any other enactment an information or complaint need not be in writing or on oath."

7. In ex parte Hill, Lord Roskill also said (at pages 342-343):

"A complaint under section 51 may legitimately be made unaccompanied by the issue of a summons. It was common ground, as it was in the Divisional Court, that a complaint need not be in writing. It can be and sometimes still is made orally as for example when an aggrieved wife arrives in the office of the clerk to the justices and complains, perhaps vehemently, that her arrears of maintenance have not been paid and that she requires action to be taken to secure payment. This may or may not require a summons in order to secure the attendance of the allegedly defaulting husband."

8. Where a complaint is made in writing, rule 2 of the Magistrates' Courts (Forms) Rules 1981 calls for consideration. It provides in rule 2(1):

"The forms contained in Schedule 2 to these Rules or forms to the like effect may be used, with such variation as the circumstances may require, in connection with proceedings in magistrates' courts."

9. In Schedule 2 there is a form (Form 98) which may be used for the making of a complaint. Form 99 provides a form for a summons issued upon a complaint having been made. It is plain from the language of rule 2(1) that the use of the statutory forms is not mandatory. That follows from the word "may" be used. Moreover, there is in any event an untechnical approach to the forms because rule 2(1) provides that the forms "or forms to the like effect" may be used.
10. To complete the citations from the speech of Lord Roskill in ex parte Hill, he also said:

"The laying of an information before or the making of a complaint to a justice of the peace or the clerk to the justices to my mind means, in reference to a written information or complaint, procuring the delivery of the document to a person authorised to receive it on behalf of the justice of the peace and the clerk to the justices. The acts of delivery and receipt are ministerial..."

11. It is now necessary to consider what happened in the present case. PC Jones prepared a case and reported it for consideration of proceedings. On 22 April 2006 he completed a document on a pro-forma headed "North Wales, Police Summons Headings Form". The pro-forma then provided space for "Offender's Details". It is clear that this is the document through which process was initiated. The relevant particulars, being the part actually composed by PC Jones as opposed to wording which pre-existed as part of the pro-forma, stated:

"ON 14/02/06

AT DINAM FAWR FARM, CAERGEILIOG, ANGLESEY,

YOU, BEING THE OWNER OF A DOG ... WHICH WAS DANGEROUS AND WAS NOT KEPT UNDER PROPER CONTROL, COMPLAINT IS LAID BY PC 2184 JONES

WHO APPLIES FOR AN ORDER THAT THE DOG IS TO BE KEPT UNDER PROPER CONTROL OR DESTROYED

PURSUANT TO SECTION 2 OF THE DOGS ACT 1971."

12. Although it is apparent on the face of that document that it is a pro-forma for use in the laying of informations, it is also pertinent that in the part composed by PC Jones he specifically said that he was laying "a complaint" under section 2 of the 1871 Act. That document was sent to the Administration of Justice Unit of the North Wales Police with a view to it being filed with the Magistrates' Court. The Administration of Justice Unit has access to the computer at the Magistrates' Court, and the actual filing was achieved through that means. Once PC Jones' document had been received in the Magistrates' Court, a member of staff there prepared a summons. Once again, it seems that the pro-forma that was used was one in general use in criminal cases. It contains the word in the prescribed part "information" and also the word "informant". However, once again, in the part of the document specifically derived from PC Jones' document, it communicated the message that he had made a "complaint". The evidence informs us that, thereafter, the correct computer code was used in the documentation, being the code WX04, relevant to a complaint under the Dogs Act 1871.
13. It must be said that, on any basis, the casual use of pro-formas which appear to have been brought into existence more with criminal matters than civil matters in mind is to be deprecated. It seems, on the evidence, that although casual, it was usual and not specific to this case. One hopes that, as a practice, it has ceased.
14. Mr Wells submits, and I accept, that the form and content of the summons are not strictly relevant to the question whether the proceedings were initiated by complaint rather than by the laying of an information. The essential question for the Magistrates' Court was whether what was lodged at court was in substance a complaint. Whilst, as I have said, it is regrettable that PC Jones used a form which is generally used for the laying of an information in a criminal matter, nevertheless it is apparent on the face of the document that he, PC Jones, was seeking to invoke the jurisdiction under section 2, and that the words "complaint is laid by PC Jones" were appropriate words for that purpose. In my judgment, the staff at the Magistrates' Court were correct to receive and treat that document as a complaint.
15. Statute has deliberately permitted informality, and it would be quite wrong for this court to superimpose a rigidity reminiscent of that surrounding the forms of action at common law prior to 1852. I am satisfied that in fact and in law the proceedings were initiated by complaint and not by information, and that it was not open to the Magistrates' Court to reach a contrary conclusion.
16. In those circumstances, and having regard to what I have already said, it is unnecessary to say much about the summons. It was the complaint that founded the jurisdiction for the Magistrates' Court. The subsequent summons was simply the means whereby the court sought to procure the attendance of Mr Ghani. In R v Hughes (1879) 4 QBD 614, Hawkins J said at pages 624 to 625:

"There is a marked distinction between the jurisdiction to take cognizance of an offence, and the jurisdiction to issue a particular process to compel the accused to answer it. The former may exist; the latter may be wanting.

...

Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of a trial could take place ..."

17. Baron Huddleston added at page 633:

"An information is nothing more than what the word imports, namely the statement by which the magistrate is informed of the offence for which the summons or warrant is required, and it need not be in writing unless the statute requires ... Principle and the authorities seem to shew that objections and defects in the form of procuring the appearance of a party charged will be cured by appearance."

Those passages were cited with approval by Lord Roskill in ex parte Hill (at pages 344-345).

18. In the present case, Mr Ghani knew of all the hearing dates in the Magistrates' Court. He attended when necessary and was always represented by his solicitor. Whether or not the summons was defective, its purpose was achieved. In the words of Baron Huddleston, any such defects were "cured by appearance". In any event, formal objection to a defect in the summons is constrained by section 123 of the Magistrates' Courts Act. I have spent a few moments on the question of the summons because it seems to have played a significant part in the decision of the magistrates. For the reasons that I gave earlier, it ought to have played no part at all because the crucial question was whether the prior document was or was not a complaint. As I consider that it clearly was and that no contrary conclusion was available to the magistrates, that really is an end of the matter.
19. I ought to refer briefly to two points made on behalf of Mr Ghani in the written grounds for opposing the application for judicial review. It is said that the application does not disclose grounds for granting judicial review. That, it seems to me, is a rather pedantic approach. It is obvious from the claim form that the case to be advanced on behalf of the Chief Constable was that the Magistrates' Court were not entitled to conclude as they did. Whether one expresses that in terms of unlawfulness or Wednesbury unreasonableness or by reference to any other public law criterion, it is clear what was sought, upon what grounds and with what ultimate relief.
20. The other point made on behalf of Mr Ghani is that the application for judicial review was inappropriate because there were alternative remedies, namely by appeal to the Crown Court or by way of case stated to this court. This is a matter which raised an issue as to the jurisdiction of the Magistrates' Court: the very question of whether it was properly seised of a complaint under section 2. In my judgment, it was entirely appropriate to make the application by way of an application for judicial review.
21. Accordingly, I would grant the relief sought. I would quash the decision of the magistrates and any ancillary orders made by them in relation to costs, and I would remit the matter to the magistrates to hear and determine the complaint.
22. MR JUSTICE WALKER: I agree.
23. LORD JUSTICE MAURICE KAY: Thank you, Mr Wells.
24. MR WELLS: My Lord, I seek that order and I would also seek an order for the costs of this judicial review.
25. LORD JUSTICE MAURICE KAY: That is very optimistic of you in view of the fact that this is a problem not entirely of Mr Ghani's making.
26. MR WELLS: My Lord, I accept that.
27. LORD JUSTICE MAURICE KAY: Against whom are you seeking costs?
28. MR WELLS: Against the interested party, my Lord, for this reason: it is quite clear that from March last year the defendant took a point that it was not going to contest the matter and the matter would not therefore be in issue. The application was made, permission was granted and a short hearing was envisaged. As it has turned out, the foresight and understanding of Collins J was amply rewarded, but in view of the grounds of objection being put and the amount of work and the amount of involvement, indeed the projection for the length of the hearing was increased considerably. Had it been a fully contested hearing, then that would have been longer. As it turns out, it was not necessary and no actual submissions were eventually addressed to the court. It is for that reason, my Lord, that I seek the costs.
29. I accept that your Lordship's judgment makes criticism of the way in which the matter was dealt with on an administrative basis by both the police and ultimately the Magistrates' Court staff too. But in the circumstances my submission is that the point was raised by the interested party and the reason we are here is because of the interested party, and in those circumstances, in my submission, the interested party should pay.
30. LORD JUSTICE MAURICE KAY: Thank you very much. (pause)
31. Mr Wells, as we construe the costs schedule that you have submitted, that relates entirely to the application for judicial review?
32. MR WELLS: It does, my Lord.
33. LORD JUSTICE MAURICE KAY: Well, we are not going to make any order for costs on the application for judicial review. There remains the question of the costs in the Magistrates' Court. As I said in the course of judgment, the ancillary order made by the Magistrates' Court goes with the substantive order, but it seems to us it would remain open to you at some stage to seek an order in the Magistrates' Court for the costs incurred in relation to a point that turns out to have been wrongly taken, but we are not saying anything as to whether we would make an order in your favour, simply that having quashed what the magistrates had done and having directed that they hear and determine the case, it is open to you to make an application in that jurisdiction if you wish to do so.
34. MR WELLS: My Lord, yes.
35. LORD JUSTICE MAURICE KAY: We say nothing about its likelihood of success. We simply think it would be for the magistrates and not for us.
36. MR WELLS: My Lord, yes.
37. LORD JUSTICE MAURICE KAY: Thank you very much.
38. MR WELLS: I am obliged.