Director of Public Prosecutions v Bird
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson,MR JUSTICE WILKIE |
| Judgment Date | 29 October 2015 |
| Neutral Citation | [2015] EWHC 4077 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 29 October 2015 |
| Docket Number | CO/3509/2015 |
[2015] EWHC 4077 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Lord Justice Beatson
Mr Justice Wilkie
CO/3509/2015
Mr James Boyd (instructed by the Director of Public Prosceutions) appeared on behalf of the Claimant
The Respondent did not appear and was not represented.
This is an appeal by the prosecution by way of case stated. The case was stated on 20 July 2015 by District Judge (Magistrate's Court) Matthews in respect of her decision on 7 May 2015 at the Bristol Magistrates' Court. She refused to allow the prosecution to proceed on a charge of criminal damage between 25 January and 18 September 2013 that another bench of magistrates, lay justices, had dismissed on 20 March 2015. I take the facts as the District Judge found them from the case stated.
The other bench to which I will refer as the March Bench, had dismissed the charge on the ground that the alleged offence occurred more than six months before the postal requisition was sent to the respondent Maria Bird and in the judgment of the magistrates on that occasion was caught by the limitation period in section 127 of the Magistrates' Court Act 1980 Act; see case stated paragraph 3. By S.127(1), except as otherwise expressly provided by any enactment and subject to subsection 2:
"A magistrates' court shall not try an information… unless the information was laid… within six months from the time when the offences was committed or the matter of complaint arose."
By subsection 2, subsection 1 does not apply "In relation to any indictable offence."
On 1 April 2015, the prosecution wrote to the court seeking in the words of the case stated but perhaps reflecting a former procedure, "to obtain a fresh summons in relation to this offence in order to resurrect the proceedings." The prosecution contended that the magistrates' court in March had been wrong to conclude that the previous proceedings were time barred pursuant to section 127 of the 1980 because the offence charged, criminal damage, was an indictable offence and consequently not subject to the six-month limit in section 127. It was submitted that in any event the magistrates had no power to dismiss the proceedings because section 127 provides only that a magistrates' court "shall not try an information" unless it was laid within the time limit.
The court's endorsement after the March hearing read "Dismissed-out of time" and the court register showed that the case was dismissed. The prosecution, however, submitted that it followed from the words of section 127 that that there had in law been no dismissal of the previous charge in March but only a refusal to try it; see the case stated paragraph 4. Thereafter, on 9 April 2015, a postal requisition was issued to the respondent recharging her with the offence of criminal damage between 25 January and 18 September 2013.
The material parts of the case stated following the 7 May hearing which was the first hearing, are:
"6… The prosecution advocate submitted that there could not have been a dismissal by the magistrates as section 127 entitled the magistrates only to try the information. The case file and Court Register to show a dismissal. There is no endorsement suggesting that the proceedings were stayed. I suggested that the matter could be re-listed before the original bench and legal adviser in order to ascertain whether the file was endorsed in error. Had the bench dismissed or stayed the proceedings? If the original bench was not reconvened, then if an error of law had been made, the High Court has jurisdiction to direct the matter be revisited. A District Judge (Magistrates' Court) has no jurisdiction to revisit a case which is being dismissed by a lay bench. A District Judge (Magistrates' Court) may not hear an appeal against the decision of a court at the same level.
OPINION
7. The issuing of the postal requisition is in my view flawed as the magistrates had clearly dismissed the very charge which the CPS wished to in their words 'resurrect'. No attempt was made by the crown to reconvene the original bench for clarification."
The questions for the opinion of this case are as follows.
1. Was the District Judge wrong to invite the prosecution to re-list the case before the original bench for clarification.
2. Was the District Judge wrong to indicate that the High Court had jurisdiction to deal with the error of law whereas she did not.
3. Was the District Judge wrong not to permit the prosecution to the proceed on the new 'charge'."
The grounds of appeal are that the District Judge had no power to prevent the prosecution from proceeding on the new charge for two reasons. The first was that the respondent had not been lawfully acquitted by the previous bench of magistrates so she could not rely on a plea of autrefois acquit, ie the principle precluding double jeopardy. The second reason was that the only other legal impediment to a prosecution of the respondent for the same charge as had been previously dismissed was if the circumstances of the prosecution amounted to an abuse of the court's process. It was submitted on behalf of the prosecution by Mr Boyd in writing and orally, that the prosecution was not seeking to go behind a reasonable and lawful decision to dismiss, therefore, there would have been no ground to have invoked the exceptional remedy of a stay.
There has been no appearance on behalf of the respondent or other than the case stated, the court. I turn to the questions for the opinion of the court.
Mr Boyd made concise and focused submissions in support of the prosecution's grounds. I agree with him that it is appropriate to deal with the third question first. That is the District Judge was wrong not to permit the prosecution to proceed on the new charge. It raises the central issue at the heart of this appeal.
My starting point is the decision in R v West [1964] 1 Q.B. 15 approved by the House of Lords in R v Dorking Justices, Ex parte Harrington [1984] A.C 743. In West's case, justices had summarily tried and dismissed an information which they had no jurisdiction to try because the offence in question (in that case being an accessory after the fact) was not triable summarily but only on indictment. After the justices had acquitted the defendant and were told that they had acted with no jurisdiction, they made a further decision and committed the defendant to the Quarter of Sessions where he was indicted and convicted. His appeal against the refusal of the Quarter Sessions to quash the indictment was dismissed. Mr Justice Streatfield stated that the Quarter Sessions had jurisdiction to decide whether there had been a prior effective acquittal by a court of competent jurisdiction. He also stated at page 30:
"The justices had not exhausted their jurisdiction by assuming jurisdiction which they never had, and they certainly had not debarred themselves from acting in their other capacity as examining justices and committing for trial."
In order to determine whether the District Judge erred in law in not permitting the prosecution to proceed on the "new" charge, it is therefore necessary to determine the position and status of the earlier March proceedings. The starting point is the reliance by the lay justices on S.127 of the 1980 Act, the material parts of which I have set out. That provision only imposes a six month limitation period for summary...
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