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
		11th February 2011

1. MR JUSTIVE DAVIS: This is a claim for judicial review relating to a decision in the Bromley Magistrates' Court whereby an information was dismissed on 26 November 2009 for want of attendance by a prosecutor. Permission was initially refused on the papers, but in the event permission was granted by the Divisional Court on 23 November 2010.
2. One point that had been raised at that particular stage was that it had been suggested that the claimant had an alternative remedy, namely to issue a fresh summons the day after 26 November 2009. Suffice it to say the time periods are such that, on the facts here, that would not have been a possibility available to the claimant.
3. The background is this. Mr Christopher Stephens, who is an interested party in this claim and who has been served with all the papers and who has not attended, was summonsed to attend Bromley Magistrates' Court on 3 November 2008 to answer an allegation under the Social Security Administration Act 1992 to the effect that he had failed to notify a change of circumstances and had wrongly benefited to the tune of some thousands of pounds. Mr Stephens failed to attend the court on 3 November 2008. No warrant was issued on that occasion, and the case was adjourned by the justices until 17 December 2008, when again Mr Stephens did not attend and on that occasion a warrant was issued.
4. The warrant was executed on 26 November 2009. On that morning, the claimant, the London Borough of Bromley, was informed that Mr Stephens had been arrested, was in custody and was at the Magistrates' Court. There was then discussion between the representatives of the claimant and the solicitors the claimant regularly instructed in such matters. Until being told that morning of Mr Stephens' arrest, neither the claimant nor the claimant's solicitors could have known that the matter would be before the court that particular day. According to evidence filed on behalf of the claimant, it was told that the court would in any event not be ready to deal with the case until later on during the day.
5. The claimant's solicitors took steps to instruct counsel. Clearly this had to be done in something of a hurry given the short notice, but in the end counsel's chambers were contacted and it was arranged that counsel would attend on behalf of the claimant at the Magistrates' Court. Due to the shortness of time it was made clear that counsel would not be able to arrive until after lunch.
6. According to a statement of the solicitor acting for the claimant in that matter, she telephoned the court and informed the court that counsel would arrive "at about 2 o'clock." In the event, counsel's train only arrived at the local station at 2.20, and indeed counsel had notified her Clerk of that point over the telephone, counsel herself only consequently attending court a minute or two thereafter. According to her statement she was, as she arrived at court, speaking on her mobile phone with her solicitors to discuss the details of the case.
7. In the event, it appears that the matter had been called on before the justices at around 2.10. The justices dismissed it for want of prosecution. Counsel arrived a few minutes later, as I have indicated, to find out that that was the position and the matter was therefore at an end so far as the court was concerned.
8. An acknowledgement of service has been put in on behalf of the Magistrates' Court. Very properly, the Magistrates' Court indicates that it does not intend to appear or contest the matter. That is entirely understandable. They helpfully then go on to seek to explain the background as far as the court itself was concerned. According to the acknowledgement of service, the legal adviser dealing with the Stephens case was aware that the prosecutor was not initially in attendance and stood the case down to the afternoon session. According to the acknowledgement of service, the prosecutor was expected to arrive by 2 o'clock; that does not precisely coincide with what solicitor's statement, which is that she simply informed the court on the telephone that counsel would arrive by "about 2 o'clock".
9. It is confirmed that the case had been called on at 2.10, that the prosecutor had still not arrived and the justices dismissed the case pursuant to section 15 of the Magistrates' Court Act 1980. This is then said in the acknowledgement of service:

"In reaching the decision to dismiss, the justices believe they would have considered their powers under section 54 of the Magistrates' Court Act 1980 to adjourn the matter and release Mr Stephens or remand him within the confines of the court building pending the arrival of the prosecutor. As they have no recollection, they cannot categorically state that they did so, but this would be their normal practice. There was no consideration of the merits of the case or issues of the evidence against Mr Stephens prior to the case being dismissed. No pleas were taken."

10. Nowhere is it suggested that the Magistrates' Court attempted to telephone the solicitors with whom they had recently been in contact to find out whether a prosecutor was indeed attending or what had happened. It seems to be accepted by the acknowledgement of service that no such query was made by the court.
11. Miss Zentler-Munroe, appearing on behalf of the claimant, the London Borough of Bromley, today and who has put the matter very well indeed, has been able to make her points succinctly and forcefully. In summary, what she says is this. She submits that the decision to dismiss made by the justices on that day was outside the reasonable range of responses open to justices in such a situation as this, and was unfair. She makes the following particular points. First, this was not a pre-fixed trial. On the contrary, it was only because of the happenstance of the warrant being executed against Mr Stephens on that particular day that the matter was before the court at all. Before that particular morning, the claimant and the claimant's solicitors could have had no appreciation that any hearing would be taking place at all. Second, she submits that the solicitors for the claimant had made clear to the court that counsel was being instructed and the court was on her way and was told that counsel was going to be arriving at "about 2 o'clock." Thus, the court was aware that the claimant was intending to instruct someone and that someone would be on the way. Then she emphasises that no telephone calls were made at 2 o'clock or at all on behalf of the court to inquire as to whether a prosecutor was indeed on the way, and what was the estimated time of arrival. She submits that the court could have had no reason to think that a prosecutor was not expected to come, given the telephone conversation of an hour or so previously when it was made clear that a prosecutor would be attending. In consequence, she goes on to submit that no warning whatsoever had been given to the claimant or the claimant's advisers that the court was considering dismissing the case, and the prosecutor had no opportunity to present his case or explain the position. She further submits that there was no reason why the court should not have waited beyond 2.10, given the circumstances, in any event.
12. I accept the submissions of Miss Zentler-Munroe. Given these combination of circumstances, I have to say that with respect, that there can be no proper justification for the court dismissing the summons in the way that it did on a peremptory basis by virtue of the failure of the prosecution to attend. One well appreciates the desire for a Magistrates' Court to ensure that there is proper discipline and that the administration of justice is served by cases being promptly heard. But the overall consideration here is one of fairness. In the circumstances here it was not fair, in my view, for the court to do as it did, even though, for myself, I can accept that there may have been an element of muddle as far as the court was concerned, and it may well be that the justices themselves may have been told that the prosecutor would in fact be attending at 2 o'clock on the dot, although the evidence indicates that that is not what the court officials had been told by the solicitors.
13. For my part, therefore, I would accept the case put forward on behalf of the claimant by Miss Zentler-Munroe, and I would agree that it is appropriate to make a mandatory order requiring the justices to proceed to hear the information which was purportedly dismissed on 26 November 2009.
14. If my Lord agrees with that, then there is also the question of costs. Although Miss Zentler-Munroe has argued forcefully for an order for costs in her favour against the Magistrates' Court, speaking for myself, I do not think this is an appropriate case to make such an order. Miss Zentler-Munroe accepts, in the light of the statutory provisions, that by virtue of the London Borough of Bromley being the prosecuting authority, no order for costs can be made out of central funds.
15. MR JUSTICE MITTING: I agree, for the reasons given by my Lord, that a mandatory order should be issued, and that there should be no order for costs. The only comment that I wish to add is that I wish to associate myself with his remarks about the quality of the advocacy that we have heard today.