Danny Mansfield v DPP
| Jurisdiction | England & Wales |
| Judge | Mrs Justice May DBE,Lord Justice Stuart-Smith |
| Judgment Date | 03 November 2021 |
| Neutral Citation | [2021] EWHC 2938 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1003/2021 |
[2021] EWHC 2938 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Stuart-Smith
Mrs Justice May DBE
Case No: CO/1003/2021
Maya Sikand QC and Lee Sergent (instructed by GT Stewart) for Appellant
Louis Mably QC and James Boyd (instructed by Appeals and Review Unit, Crown Prosecution Service) for the Respondent
Hearing dates: 19 October 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
By this appeal the appellant, Danny Mansfield (DM), challenges the decision of District Judge Heptonstall dated 23 December 2020 refusing his application to stay proceedings as an abuse of process. He seeks an order quashing his conviction for possession of a bladed article in a public place. By a case stated dated 10 March 2021 the Divisional Court is invited to determine two questions as follows:
(i) Was the District Judge right to find that the magistrates' court did not have the jurisdiction to determine this type of abuse of process application?
(ii) On the facts found, was this prosecution an abuse of the court's process?
Background facts
We take the facts from paragraphs 6 to 13 of the full and helpful case stated provided by the District Judge:
“6 On 18 July 2020 [DM] was 18 years old and of previous good character. He was the front seat passenger in a vehicle that was stopped by PC Roberts, shortly before midnight. The officer noticed the smell of cannabis. [DM] told him that he had a “spliff” rolled cannabis cigarette and the driver did not have anything on him. The officer took the cigarette from [DM]. Soon after the officer lawfully searched [DM] and noticed a solid object in the front left-hand pocket of his shorts; that was a lock knife. [DM] was arrested at 12.06am and made no reply to caution; he was taken to the police station arriving at about 12.45am.
7. Shortly after 1am the police contacted the duty solicitor Mr Balhar Dhamrait of GT Stewart in order to provide [DM with] representation; Mr Dhamrait was admitted as a solicitor in 2004 and has 21 years' experience in representing suspects in police stations. There was further contact about 7am. Around 8am PC Wearing provided pre-interview disclosure to Mr Dhamrait via email; he had a telephone consultation with [DM] from 8.11–8.21am, in which he advised to make no comment. Prior to the consultation Mr Dhamrait raised some queries to which PC Wearing responded at 8.16am. Mr Dhamrait sent a further email at 8.19am to enquire whether “All options available by way of caution for both offenses (sic)?”. The officer did not respond to that email but the issue was taken up in a telephone conversation.
8. The conversation: when asked about the email PC Wearing told Mr Dhamrait that her sergeant had authorised a caution for both allegations only on the basis that [DM] made admissions to both offences.
9. PC Wearing then allowed Mr Dhamrait to have a further conference with [DM] via her laptop. He noted that PC Wearing confirmed in front of [DM] at 8.38am that a caution had been authorised. Accordingly, in the private consultation, Mr Dhamrait's advice changed from no comment to making full admissions.
10. [DM] was interviewed between 8.46 and 8.53am, by officers Wearing and Harris, with Mr Dhamrait assisting him via Microsoft Teams. He said that [he] worked in construction. In relation to the knife, he accepted that it was his, that he did not have lawful authority to carry it and did not know that it was an offence to carry the knife. When asked why he had the knife he said, “I didn't have any intent to do anything with it, I just had it in case” and in response to whether it was for his own protection, “I was not willing to use it” adding later, “Yes, with the knife I had no intention to harm anyone.”
11. PS Robinson was the ERO [evidential review officer] who made recommendations for the method of prosecution. These were recorded on the custody record: at 9.51 he noted that:
Having reviewed the evidence in this case I give authority to proceed by way of
Simple Caution.
I have discussed this case with the interviewing officer and I have reviewed the Director Guidance on charging. I am satisfied that I am able to make a decision in this case.
DP was stopped as a passenger in a vehicle. He was found to be in possession of a small quantity of cannabis and a knife.
In interview, he gives a full account with his solicitor present. He admits possession of the knife and to having the cannabis for his own personal use.
I have confirmed that the DP is no trace on PNC and has never been arrested before. I have not been informed of any other relevant history.
I have reviewed the gravity matrix and assess the score to be 3.
DP to be offered a caution for possession of cannabis and a caution for possession of a bladed article.
12. PS Robinson communicated that decision to PC Wearing and she passed it on to the custody sergeant so that the cautions could be administered. The sergeant challenged the decision and PS Robinson was asked to reconsider. A further custody record entry by the(sic) PS Robinson at 10.20am was identical apart from a score of 4 and a disposal by way of community resolution for possession of cannabis and charge for bladed article. There was no explanation in the entry for the change of position but he did send PC Wearing a WhatsApp message at 10.21am stating “All done. Sorry, I was looking at the wrong document for the Gravity Matrix.” [DM] was charged at 10.42am.
13. Mr Dhamrait was informed of that outcome by PC Wearing by email at 11.02am. He responded at 11.10am expressing his surprise as there had been an assurance that there would be a caution.”
When the case came before the District Judge solicitor for DM submitted that the magistrates' court had jurisdiction to hear and determine whether the proceedings against DM should be stayed as an abuse of process by reason of the clear indication of a caution to both offences given by PS Robinson on the basis of which DM made admissions in interview. In response, the Crown, relying on the cases of Nembhard v DPP [2009] EWHC 194 (Admin) and Woolls v North Somerset Council [2016] EWHC 1410 (Admin), argued that the magistrates' court did not have jurisdiction, and that the issue of abuse was a matter for the High Court alone to determine.
DJ Heptonstall decided that he was bound to follow Nembhard and Woolls, whilst expressing a concern as to the correctness of those decisions regarding the breadth of magistrates' jurisdiction over cases of abuse. In his admirable case stated the DJ thoroughly reviewed the development and application of the caselaw in this area, suggesting that there may have been an “unintended elision” between abuse which engages wider rule of law principles and a broader supervisory jurisdiction, as discussed by the House of Lords in the case of R v Horseferry Road Magistrates Court ex parte Bennett [1994] AC 42 and the second of the two principal types of abuse identified by this court in R v Beckford [1996] 1 Cr App R 94.
The District Judge took the view that, notwithstanding his reservations concerning Nembhard and Woolls, he was bound by those authorities. He found in DM's favour on the facts but made no determination as to whether there had been an abuse of process. Following the District Judge's rulings DM pleaded guilty to a single charge of possession of a bladed article.
The parties' arguments on appeal
We are grateful to all counsel — Maya Sikand QC and Lee Sergent for the appellant and Louis Mably QC for the respondent — for their clear and helpful skeleton arguments and for their assistance during oral submissions.
Jurisdiction
It was common ground that there are essentially two categories of case where a stay is warranted on grounds of abuse of process: the first (category 1) where it is impossible for the defendant to receive a fair trial; the second (category 2) where all the circumstances taken together offend the court's sense of propriety and justice: R v Maxwell [2010] UKSC 48, [2011] 1 WLR 1837 at [13], cited in Warren v Attorney General for Jersey [2011] UKPC 10, [2012] 1 AC 22 at [22]. Counsel were agreed that the present case falls within category 2.
Ms Sikand contended that the analysis undertaken by Maurice Kay LJ in Nembhard took a wrong turn and that the error was thereafter repeated in Woolls. She argued that the court had in each case mistakenly understood previous authority as supporting a wholesale exclusion of category 2 cases from the magistrates' jurisdiction when in fact the authorities relied upon did not do so. She submitted that the House of Lords decision in Bennett and a subsequent line of Divisional Court authority, together with obiter dicta from the Privy Council's decision in Panday v Virgil [2008] UKPC 24, [2008] 1 AC 1386, make it plain that it is only one very narrow aspect of category 2 cases that is excluded from the jurisdiction of the magistrates' court.
Mr Mably recognised that the issue as to whether the magistrates' court has jurisdiction to stay proceedings on the ground of the second category of abuse has been the subject of conflicting authority and judicial comment. He also acknowledged – in my view correctly — that the cases relied upon by the courts in Nembhard and Woolls did not provide support for their conclusion that the Magistrates Court has no jurisdiction over category 2 cases.
In his skeleton argument Mr Mably suggested that there was nevertheless a basis for preferring the Nembhard/ Woolls line of authority, submitting that the magistrates' court, exercising a summary...
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