England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice The Strand London WC2A 2LL
		7 February 2008

Thursday 7 February 2008

LORD JUSTICE MOSES:

1. This is an application to require the magistrates at Corby to issue summonses, the first two in relation to police officers of the Ministry of Defence Police Agency alleging that they were guilty of misconduct in public office contrary to common law; and the third alleging assault occasioning actual bodily harm against an Airman First Class of the United States Airforce. All the allegations relate to an incident which occurred on 19 February 2006.
2. The magistrates were invited to issue a summons on the basis of particulars attached to a careful letter setting out the proposed summonses by the claimant, Lindis Percy.
3. The claimant alleges that on Sunday 19 February 2006 she was at RAF Croughton in Northamptonshire. There she was accosted by several American military personnel. Airman First Class Frank Macdonald took the lead and controlled the incident. She was hand-cuffed and detained face-down on the ground. She repeatedly said to the American personnel that the Ministry of Defence Police Agency based at RAF Croughton should be called to deal with the incident pursuant to Third Air Force Instructions 31-209 of 15 February 2004. Following that request two Ministry of Defence Agency officers arrived, PC Athawse and PC Woodhouse. They instructed the American airmen to remove the handcuffs and said that they would now deal with the situation. However, it is alleged that Airman First Class Macdonald would not allow this and pushed one of the officers away. Neither of the Ministry of Defence Police Agency officers insisted that they should assume control. They allowed the American military personnel to continue the search of the claimant. During the course of that search she alleges that she sustained pressure to the carotid nerve of her neck as a result of the activities of Airman First Class Macdonald, which caused facial palsy from which she suffered for a period of six weeks. She suffered bruising, a cut to her right hand and abrasions from the tight fixing of the handcuffs.
4. Whilst this serious assault is alleged to have taken place, PC Athawse and PC Woodhouse stood by. Neither of them intervened to stop the assault. The claimant was then issued with a section 69 notice for aggravated trespass, contrary to the Criminal Justice and Public Order Act 1994, by one of the Ministry of Defence Police Agency officers.
5. The charge against the claimant of acting contrary section 69 was dismissed by a District Judge at Northampton Magistrates' Court on 10 November 2006.
6. The obligations of magistrates when a citizen seeks to issue a summons are by now clear. They were explained yet again by Sullivan J yesterday in R (Latham) v Northampton Magistrates' Court (CO/993/2007). They follow R v West London Justices, Ex parte Klahn [1979] 2 All ER where, at pages 221-223A, the Lord Chief Justice explained the obligations of the magistrates, including the obligation to ascertain whether the offence was known to law (not an issue in this case) and, if so, whether the essential ingredients of the offence are prima facie present. Of course the magistrates are under no duty to conduct what used to be called a committal hearing, but they must exercise their judgment on the material before them as to whether the issue of the summons would merely be an abuse of the process of the court or whether there is material on the basis of which it is proper to issue the summonses.
7. On the basis of the material which I have identified, it is plain that there was sufficient to justify the issue of the summonses and nothing to the contrary. One might therefore have expected an explanation as to how it was that the magistrates have reached the view that it would not be justifiable to issue the summonses. No such explanation has ever been forthcoming. The memorandum merely records that the request to issue the summons was refused. These proceedings brought by the claimant in person, despite the opportunity to lodge an acknowledgment of service, have received no response. In those circumstances this court is faced with the clear and careful assertions of the claimant. At this stage they are mere allegations, but it is disappointing that someone who has gone to the trouble to make careful allegations in their request to the magistrates and has then been compelled to pursue these proceedings, has never had the courtesy of any response whatever. For the reasons I have given I would for my part quash the refusal of Northampton Magistrates' Court to issue the summons and order that the magistrates act in accordance with my judgment and issue the summonses.
8. MR JUSTICE SULLIVAN: I agree. In my judgment the conduct of the Northampton Magistrates' Court is open to serious criticism. As my Lord has indicated, there was no response to the letter before claim. When the claim form was served on the magistrates, there was no response whatsoever. When Silber J, on consideration of the matter on the papers, ordered that permission would be deemed granted unless an Acknowledgement of Service disputing liability was served by 4pm on 8 August 2007, that still produced no response whatsoever from the magistrates. There has been no appearance on behalf of the magistrates before this court. Whilst it is true that as a court the magistrates would not be expected to defend their decision, one would have hoped that at least as a matter of courtesy to this court the magistrates would have endeavoured to set out the basis for their decision in a neutral manner.
9. That said, I agree that judicial review must be granted.
10. THE CLAIMANT: May I make an application for costs?
11. LORD JUSTICE MOSES: The answer is: you can apply. Whether you are entitled to them, I do not know. What costs are you asking for?
12. THE CLAIMANT: Travelling costs. It is incredibly expensive when one has to start this process.
13. LORD JUSTICE MOSES: How much does it cost you to issue these proceedings?
14. THE CLAIMANT: It costs £50 for permission, £180 having received permission, then to go ahead.
15. LORD JUSTICE MOSES: So that is £50, plus £180 --
16. THE CLAIMANT: Plus photocopying, plus --
17. LORD JUSTICE MOSES: How much were your photocopying costs?
18. THE CLAIMANT: I should think somewhere in the region of about £60.
19. LORD JUSTICE MOSES: Yes.
20. THE CLAIMANT: And you have some very nice black files there.
21. LORD JUSTICE MOSES: Yes, we have. How much were they?
22. THE CLAIMANT: I think they were 99p each.
23. LORD JUSTICE MOSES: So another £2. And what about your travel costs?
24. THE CLAIMANT: Travel costs -- I have come down by car because the train was so expensive and I have stayed the night. So that has cost about £120.
25. LORD JUSTICE MOSES: So that makes £412.
26. THE CLAIMANT: Could I just add that this could have been settled without going down this road.
27. LORD JUSTICE MOSES: I know. I do not know what they are playing at. We will order costs against the Corby Magistrates' Court in the sum of £412.
28. THE CLAIMANT: Thank you.