England and Wales High Court (Administrative Court) Decisions

IN THE ADMINISTRATIVE COURT AT LEEDS

		Courtroom No. 17 The Courthouse 1 Oxford Row Leeds West Yorkshire LS1 3BG
		13th July 2017

HHJ BELCHER:

1. This is a renewed application for permission to bring proceedings for judicial review challenging the decision of District Judge Mallon dated 28 July 2016, when she refused to issue a summons on Mr Suleman's application in connection with his wish to commence a private prosecution against his ex-wife. Permission was refused on the papers by Kerr J on 4 May of this year. It has to be said that there is, unfortunately, a chequered procedural history to this matter. Mr Suleman provided information to the Magistrates' Courts on 30 November 2015. As is now clear from the papers which the Magistrates' Courts have lodged, when the hearing took place in front of District Judge Mallon on 28 July 2016, that was to enable the judge to consider whether to issue a summons. There is a Memorandum of Entry in the papers, a register for Leeds Magistrates' Court for that date, setting out a total of eleven offences, three offences of perjury and eight offences under the Protection from Harassment Act, indicating that the offence in each case was withdrawn. That Memorandum, on its face, suggests that there had been a hearing of the case as such.
2. Although initially Leeds District Magistrates, as they are entitled to do, being a court of record, took no part in these proceedings, Judge Ockleton required them to file an Acknowledgement of Service explaining what had happened procedurally and although that was filed very late, we now have that document in the Bundle. What is clear is that a complete mess was made in the Magistrates' Court. It was thought in the Magistrates' that summonses had actually been issued. Therefore, notice of the hearing, which in fact was only a hearing for Mr Suleman to apply for the summons, was also sent to his ex-wife and she appeared with a barrister. What is now clear is that, once these matters were entered onto the system as if summonses had actually been issued, there is no method of removing them. However, the magistrates' Court has now put a note on the file making it clear what the current position is, namely that no summonses have been issued.
3. Suffice it to say that those procedural matters caused significant complications in his matter, not least because Mr Suleman's ex-wife appeared with a barrister at the hearing, although the District Judge correctly declined to hear the ex-wife or her barrister. However, very fairly in his renewal application, Mr Suleman points out that his dispute does not relate to the procedural errors but it actually relates to the substance of the matter and, therefore, I now turn to the substance of the matter.
4. The substance or the history of this matter is as follows. As I have already mentioned, on 30 November 2015, Mr Suleman first contacted the Magistrates' Court seeking to bring a private prosecution against his ex-wife and that document is in the Bundle at CD1. He alleges in there offences relating to the giving of false evidence in May, June, and August of 2015 and pursuing a course of harassment against him, again in May, June, and August 2015. On 21 December 2015, by a document also at CD1, the court team manager, Fiona Proctor, notified Mr Suleman that the information provided was not sufficient to commence proceedings. There then followed a further correspondence and on 29 March, a document labelled 'GB', the deputy court clerk, Graham Bishop, wrote to Mr Suleman saying that unfortunately the matter could not be listed because there was still insufficient information about the matters relied upon.
5. What is then clear is that there must have been some further contact between Mr Suleman and Graham Bishop because there is an undated email attached to GB setting out the sort of information that the Magistrates' Court requires in order to be able to consider whether it is appropriate to issue a summons and, in particular, indicating that Mr Suleman must identify the place the offence took place, outline the offence which he alleges took place, give details of what he alleged happened, outlining in detail any evidence to support it and identifying the relevant offence. There is an example which appears to be attached to that email and seems to be something that was sent by Mr Bishop to Mr Suleman.
6. What is clear is that on 18 April (a document also at GB), Mr Suleman wrote in response to the letter of 17 March regarding the private prosecution and he states this, 'I have decided to break this down and bring the harassment and perjury side of my prosecution to court first', and then he gives his reasons for deciding to do that. Attached to that document is a table setting out the dates of three alleged offences of perjury and the dates of the eight alleged offences of harassment and giving details of those. The details in that table are the details that were plainly transferred onto the Magistrates' Court computer as they appear in the Memorandum of Entry, notwithstanding that is an inaccurate document. On the face of it, it would appear that the Magistrates' Court thought that there was sufficient information there, although I recognise that it was an administrative matter only to make those entries onto the computer.
7. There is also information in the Bundle, and again it is not entirely clear exactly when various bits of information were conveyed to the Magistrates' Court, but there is a copy of a Section 9 Criminal Justice Act statement, a handwritten statement dated 14 June of Sheena Afzal, Mr Suleman's ex-wife, and following that a document typed up by him, at No.2, Response to Sheena's Statement. It is very clear from that document, that Mr Suleman disputes the contents of the evidence in her Criminal Justice Act statement of 14 June and, indeed, that appears to be the substance of the first of the offences set out on the Memorandum of Entry and also in the document headed 'Applications' at OF1, again, a document which must have been produced by Leeds Magistrates' Court.
8. There is also a great deal of information in this Bundle regarding what can only be described as a contact dispute in relation to Mr Suleman's daughter, Jessenia, who, as I understand is now three years old. It is plain that there have been difficulties in relation to contact, both direct contact but also indirect contact, in that Mr Suleman asserts that during telephone calls to his daughter there is plainly somebody in the background and that she will be nice until she thinks she is being watched and then she will start to say that she does not love daddy, and matters of that sort. Of course, this paperwork is now of some age and I do not know whether that is still the position, although many of the allegations in relation to the contact issues start from December 2015 come through to May 2016. There are also issues about whether the child suffered a burn to her shoulder and how that happened. I mention those matters so that Mr Suleman can be quite clear that I have read all of the papers in the Bundle. If I do not refer to anything in this judgment, it is not because I have not read it.
9. What is also clear, as I have already mentioned, is that in addition to the offences which have been set out in the Memorandum of Entry, that is the three offences of perjury and eight offences under the Protection from Harassment Act, Mr Suleman also asserts abuse, emotional and physical abuse by his ex-wife both to himself and to his daughter dating back as far as 2012.
10. It is very hard from the paperwork provided by Mr Suleman to establish exactly what was before District Judge Mallon on 28 July 2016 and in particular, whether she was considering only the perjury and harassment matters or whether in fact she was being asked to consider issuing a summons on the abuse matters. I have in mind that the email of 18 April from Mr Suleman specifically says he has decided to bring the harassment and perjury side of prosecution to court first. However, there is another document at GB setting out the allegations of child abuse, although it is right to say that document, whilst in table form, is much less detailed than the information provided to the court in support of the allegations of perjury and harassment. By way of example, in relation to domestic abuse, it states "From July 2012 to the present, mental abuse, numerous examples with evidence when they have occurred and they are still happening". Undoubtedly, that would not be sufficient information on which to issue a summons for an offence.
11. I am proceeding based on the Memorandum of Entry and the fact that, whilst wrongly sent, Mr Suleman's ex-wife was plainly given a notice to attend court to deal with that and the other matters on the Memorandum of Entry. Accordingly, I am satisfied that what the Magistrates' Court was dealing with was, as requested by Mr Suleman, the questions of perjury and harassment first. Mr Suleman plainly thought, as set out in his email, that if those matters were effective, that would force the local police to review the issues surrounding the other matters. Whether that is right, of course, is a different matter but that was his reason for doing so. The document in the papers showing that notice of the hearing was sent to Sheena Afzal is in CD2 and at the bottom of that page, it sets out the details of the first offence in identical terms to that on the Memorandum of Entry and it seems likely that there would have been subsequent pages setting out the other details.
12. I conclude, therefore, that what District Judge Mallon was considering was the perjury and harassment offences only. For the purposes of a private prosecution, this has to be started by the laying of an information as is made clear by Section 29 of the Criminal Justice Act 2003. The laying of an information is only available in the case of a private prosecution. The procedure is for the information to be laid before the Magistrates' Court which will then issue a summons requiring an accused to attend. The laying of the information amounts to the commencement of proceedings. By Section 1 of the Magistrates' Courts Act 1980, on an information being laid before a Justice of the Peace, that a person has or is suspected of having committed an offence, the Justice may issue a summons requiring that person to appear before a Magistrates' Court to answer the information.
13. It is clear, from the case Gateshead Justices, ex p. Tesco Stores Ltd [1981] QB 470, referred to in Blackstone's Criminal Practice for 2017, at paragraph D 5.10, that the decision to issue a summons is judicial. It is not merely administrative and therefore, the court has to be satisfied that it is appropriate to issue a summons. In that section of Blackstone's it is made that the Magistrates' clerk issuing the summons should be satisfied (a) that the information alleges an offence known to law, (b) that it was served on the court within any time limit applicable to commencing a prosecution for the offence in question, (c) that the court has jurisdiction, (d) that the informant has any necessary authority to prosecute. Those four items are taken from the judgment of Donaldson LJ in Ex p. Tesco Stores Limited. Paragraphs (c) and (d) have no application here. The court plainly has jurisdiction and it is not necessary for an individual to show that he has authority to prosecute. The notes continue that there is, however, a residual discretion to refuse the summons and then say this: 'The discretion is not, however, unfettered. The magistrate ought to issue a summons unless there are compelling reasons not to do so, for example, if there is an abuse of process or other impropriety involved.' Then the paragraph goes on to set out various other matters that might be relevant to that and which do not apply here.
14. Thus, overall, the court has to be satisfied that the information alleges an offence known to law and there plainly has to be sufficient detail for the court to make that assessment. What is plain is that unlike the case where the Crown Prosecution Service is considering the matter, whether there is a realistic prospect of conviction forms no part of the test. That is a guidance for the Crown Prosecution Service but is not an issue in relation to a private prosecution. Whether there is sufficient evidence and the prospects of success are therefore not in issue, and District Judge Mallon did not suggest they were.
15. The reasons given by District Judge Mallon for refusing to issue the summons are set out in the Acknowledgement of Service. It is pointed out there that District Judge Mallon indicated that she had read the Bundle of documents which Mr Suleman had served on the court, that she asked him whether he had taken the matter to the police and he confirmed that he had and the police had declined to investigate. He was also asked by her whether there were any family proceedings ongoing in the Family Court and he confirmed that there were ongoing proceedings. It is then said that she formed the view the issues raised were more properly addressed in the Family Court and she refused to issue the summons.
16. In his document headed, 'OC', Mr Suleman's principal challenge is that the reason given by the Magistrates' Court was that it is a family matter and not a criminal matter is one he totally disagrees with as the legislation which creates the offences is there for a reason, and they come under the criminal law. This court is well familiar with situations where proceedings may be running both in the Criminal Courts and in the Family Courts.
17. The question for me is whether it is arguable that the decision not to issue the summonses was not properly made in the light of the reasons given. The fact that it may be more appropriate for the Family Court is not, in my judgement, in issue or should not be in issue, if the information provided to the Magistrates' Court properly discloses information that a criminal offence has been committed or it is suspected of having been committed. I am clear that there may well have been grounds on which the District Judge in this case could have refused permission. For example, there might be issues as to the time limits for any summary-only offences, which all of these are. The information must be laid within six months and there might be an issue as to whether the information was laid on 30 November 2015 in which case all offences would be in time or whether it is only laid at a later date when the appropriate information is available to the Magistrates' Court, but even if there is an issue there, that was not the reason given by the District Judge and further, in any event, it would appear even on the worst case analysis for Mr Suleman in terms of the time limits, some of the offences would have been in time in any event.
18. It might also have been the case that the District Judge could properly have refused to issue a summons on the basis that at least some of the offence details given did not in fact have sufficient details to disclose an offence. For example, the offences listed in the Memorandum of Entry at 1, 2, and 3 simply state that Sheena Afzal had given sworn evidence as a witness at criminal proceedings which she knew to be false and did not believe to be true. More properly, it should indicate what it is alleged was said that is untrue, so that the Defendant or the proposed Defendant knows the issues she has to meet. Similarly, in relation to offences listed in the Memorandum of Entry at 5, 6, and 7, on the face of those matters they don't necessarily disclose an offence but each of them relates to the fact that that Sheena Afzal called police on two occasions during the night, and on the third occasion when Mr Suleman was collecting personal belongings from the former matrimonial home. Actually, all that is said, for example at No. 7, is that she knew or ought to have known that it amounted to harassment in that she called the police. Of course, her calling the police cannot, without more, amount to harassment of Mr Suleman, but having read the documents in the papers, I fully understand, as indeed must District Judge Mallon have understood, that what he is in fact asserting is indirect harassment in that he says that the calls to the police during the night are false complaints causing him to be harassed because the police came around to his property in the night. Again, those were not reasons given by the District Judge for refusing to deal with these matters.
19. It is quite clear from the paperwork before the court that Mr Suleman is saying that the false allegations against him amounted to perjury. As I have already said, whether there is sufficient evidence or any reasonable prospect of success are not, and cannot, in my judgement be issues for the District Judge in considering whether or not to issue a summons and, as I have already said, she did not suggest they were. Equally, if the offences were out of time, even if the summonses were wrongly issued, it would open to Mr Suleman's ex-wife to argue that issue at trial if the matter ever got that far, and the same is true, of course, in relation to inadequacy of particulars and the fairness of the trial process.
20. The issue here is whether it is reasonably arguable the decision not to issue the summons was wrong in law. My view is that this is reasonably arguable given that the reason for refusing to issue summonses s that these matters should more properly be dealt with in the Family Courts. That, in my judgement, arguably, does not amount to a compelling or proper reason not to issue the summons.
21. I then turn to consider the point made by Kerr J at paragraph 5 of his Order refusing permission. He states that if he had thought there might be an arguable case he would have directed service of the Claim on the Claimant's ex-wife as a clearly Interested Party. Interested Party, for the purposes of judicial review proceedings is defined at Part 54 of the Civil Procedure Rules and at Rule 54.1, sub-paragraph 2(f). Interested Party is defined as any person other than the Claimant and Defendant who is directly affected by the claim. There are notes to that section at paragraph 54.1.13 and it is clear there that a person is directly affected if they are affected simply by reason of the grant of a remedy.
22. I am not persuaded that Mr Suleman's ex-wife is in any way affected by the grant of a remedy, if indeed one is granted in this case, because the effect would simply be to send the matter back to the Magistrates' Court for the magistrates to consider whether a summons should be issued. It does not follow that they will issue a summons and, in my judgement, the ex-wife is only affected at such time, if any, as the Magistrates' Court issues a summons. That process in itself is not a process in which she would have any locus standi and it seems to me that in this case, if the judicial review is successful, she does not amount to an Interested Party. She is not directly affected. She is certainly exposed to the possibility that the Magistrates' Court might, in due course, issue a summons, but as that is a process in which, as I have already said, she has no standing, it does not seem to me that she is affected by any remedy in this court but only affected at such time, if any, as the Magistrates' Courts issues a summons.
23. Accordingly, I grant permission to bring proceedings for judicial review but I do not direct service of the Claim on the Claimant's ex-wife as an Interested Party. I will make case management directions in the standard form. The Defendant and any other person served with a claim form who wishes to contest the claim form or support it on additional grounds must file and serve detailed grounds for contesting the claim or supporting it on additional grounds and any written evidence within 35 days of service of this Order. Any reply and any application by the Claimant to lodge further evidence must be lodged within 21 days of the service of detailed grounds for contesting the claim. The Claimant must file and serve a trial Bundle, not less than four weeks before the date of the hearing of judicial review. The Claimant must file and serve a skeleton argument not less than 21 days before the date of the hearing of the judicial review. The Defendant and any Interested Party must file and serve a skeleton argument not less than 14 days before the date of the hearing of judicial review. The Claimant must file an agreed Bundle of authorities, if any, not less than three days before the date of the hearing of judicial review. I also order a transcript of my judgment of today at public expense.
End of Judgment
Transcript from a recording by Ubiqus 291-299 Borough High Street, London SE1 1JG Tel: 020 7269 0370 legal@ubiqus.com This transcript has been approved by the judge.