Divisional Courts
| Date | 01 October 1979 |
| Published date | 01 October 1979 |
| DOI | 10.1177/002201837904300403 |
| Subject Matter | Article |
Divisional
Courts
HEARING BEFORE SUMMONS
R. v. West
Lonton
Stipendiary Magistrate, ex parte Klahn
Michael Marshall had been the defendant in High Court proceedings in
which, the Applicant, asolicitor had acted for the Plaintiffs and had
given evidence on their behalf on Affidavit. Michael Marshall applied
to the Magistrates for a Summons to be issued alleging
that
the
Applicant had committed perjury in the High Court proceedings.
The Applicant instructed Counsel to appear for him and oppose the
issue
of
the Summons,
but
the Magistrate refused to hear Counsel, on
the grounds that the Applicant had no right to be heard, and he had
no power to hear the Applicant's counsel.
The Applicant then applied to the Divisional Court for a Judicial
Review for an order
of
mandamus.
The question for the Court in this case
(1979
1W.L.R.
933)
was
whether the Magistrate had the power to hear Counsel in the circum-
stances.
Section 1(1)
of
the Magistrates Courts Act 1952 gives a justice,
before whom an information is laid, the power to issue a summons.
Normally such applications are in private and there is no provision
for the giving
of
notice to proposed defendants.
Relying on R. v. wilson,
expo
Battersea Borough Council
(1948
1KB 43), the Court said
that
there are at least four things a magis-
trate should establish before deciding to issue a summons. They are:
1) whether the allegation is
of
an offence known to the law and if so
whether the essential ingredients
of
the offence are prima facie
present;
2)
that
the offence alleged is not
"out
of
time";
3)
that
the Court has jurisdiction;
4) whether the informant has the necessary authority to prosecute.
He also has to consider whether the application is vexatious. R. v.
Bros.
(190185
L.T. 581).
186
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