DPP v Tonie Jarman
| Jurisdiction | England & Wales |
| Judge | Mr Justice Griffith Williams,Lord Justice Beatson |
| Judgment Date | 10 December 2013 |
| Neutral Citation | [2013] EWHC 4391 (Admin) |
| Docket Number | CO/8554/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 December 2013 |
[2013] EWHC 4391 (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 Griffith Williams
CO/8554/2013
Mr S Heptonstall (instructed by CPS Specialist Crime & Counter-Terrorism Division) appeared on behalf of the Appellant
Mr R Gregory (instructed by Rich & Carr Freer Bouskell Solicitors) appeared on behalf of the Respondent
(As Approved by the Judge)
This is an appeal by the prosecution by way of Case Stated. The case was stated by District Judge (Magistrates' Court) Strongman in respect of his decision sitting at Nuneaton Magistrates' Court on 22 February to order a stay of proceedings against Tonie Jarman, the respondent, for assault by beating, as an abuse of process.
I take the facts as the District Judge found them from the Case Stated. On 2 May 2012 the respondent was charged that on 4 March he assaulted Tracey Anne Barraclough by beating her. He was bailed to appear at Nuneaton Magistrates' Court on 14 May. He duly attended and pleaded not guilty to the charge. The trial was fixed to take place on 7 August and he was readmitted to bail. On 7 August he surrendered to his bail at the Magistrates' Court in anticipation of his trial, which was listed to start at 10.00 am. He was represented by his solicitor. Also at the court were the witnesses for the prosecution, Mrs Barraclough and their 9 year old daughter.
When by 10.00 am no advocate had attended to represent the prosecution the court made enquiries of the Crown Prosecution Service to be told that an agent had been instructed but another agent would be sent in his or her place as soon as possible. The magistrates sitting to hear the trial, having been appraised of the facts as they were then known, having heard submissions from the respondent's solicitor and having taken advice from their legal advisers dismissed the case for want of prosecution pursuant to the provisions of section 15 of the Magistrates' Courts Act 1980 ("the Act"). It was then about 10.45 am. When the substituted prosecutor arrived at court at about 11.10 am he was told the case had been dismissed.
On 5 August 2012 an information was laid within time alleging the same offence as that charged on 2 May and a summons was issued requiring the respondent to attend Nuneaton Magistrates' Court on 17 September. He duly attended and pleaded not guilty to the charge. His solicitor informed the court that the proceedings would be challenged as an abuse of process on the basis that the respondent had been acquitted on 7 August when the magistrates had dismissed the charge for want of prosecution. Directions were made for the filing of skeleton arguments and the case was set down for legal argument on 29 October.
In the event, it was subsequently adjourned and so it was that the matter came before District Judge Strongman on 22 February 2013. The District Judge set out the respective cases in the skeleton arguments provided for the court. The prosecution submitted that the decision of the lay magistrates was unreasonable and was a nullity. The prosecution referred to R v Hendon Justices (ex parte Director of Public Prosecutions) [1993] 96 Cr App R 227, in which, on the particular facts of that case, this court found that the magistrates had acted outside their statutory power to dismiss and the decision was therefore a nullity. In oral submissions the advocate appearing for the prosecution submitted additionally that the District Judge could set aside the decision of 7 August either because it was wrong in law and so a nullity or pursuant to the provisions of section 142 of the Act.
Her second submission was that the respondent had not been in jeopardy on 7 August because he could not have been convicted in the absence of a prosecutor and moreover the acquittal was not one on the merits and so the dismissal was not a bar to the laying of a further charge and a plea of autrefois acquit must fail.
Her third submission was that the respondent would suffer no prejudice if he was now tried for the assault because he could still be tried fairly and the public interest required the charge to be tried. There was accordingly, she submitted, no abuse of process.
The respondent's solicitor submitted that the case had been properly dismissed on its merits, that one of the witnesses was the 9-year-old daughter of the respondent and the complainant, that a prosecutor attending at court with no knowledge of the case would have needed time to consider the papers, which may have taken up to 2 hours, and the case had been listed to start at 10.00 am with a time estimate of 4 hours.
The second submission was that the dismissal pursuant to section 15 was an acquittal. The solicitor cited section 27 of the Act and section 3 of the Police and Criminal Evidence Act 1984 ("PACE") in support of the submission.
The third submission was that as a plea of autrefois acquit was not available in the Magistrates' Court protection against double jeopardy is provided by a stay for abuse of process. He submitted that the application of a principle of double jeopardy in Magistrates' Courts is plain in cases such as R v Hendon Justices (above).
The District Judge concluded it would not be appropriate to sit in what effectively would be an appellate capacity. He observed that the appellant had had an opportunity to challenge the magistrates' decision by Case Stated and had not done so. He concluded that he should consider only the effect of the magistrates' order and whether it was an abuse of process for the case to continue.
The District Judge considered section 15 of the Act:
"15 Non-appearance of prosecutor.
(1)Where at the time and place appointed for the trial or adjourned trial of an information the accused appears or is brought before the court and the prosecutor does not appear, the court may dismiss the information or, if evidence has been received on a previous occasion, proceed in the absence of the prosecutor.
(2)Where, instead of dismissing the information or proceeding in the absence of the prosecutor, the court adjourns the trial, it shall not remand the accused in custody unless he has been brought from custody or cannot be remanded on bail by reason of his failure to find sureties."
He concluded that the choice afforded to the court on the non-attendance of the prosecutor was either to dismiss the information or to adjourn the trial.
As to the meaning of "a dismissal", he found assistance in section 27 of the Act:
"27 Effect of dismissal of information for offence triable either way.
Where on the summary trial of an information for an offence triable either way the court dismisses the information, the dismissal shall have the same effect as an acquittal on indictment."
He concluded that while that section relates to either way offences and the present offences was summary only, there was no basis for distinguishing between either way and summary offences and so the dismissal of the assault charge was, in effect, an acquittal.
He concluded that while a "discharge" under section 6 of the Act or a discharge pursuant to section 23 of the Prosecution of Offenders Act 1985 is no bar to the prosecution continuing proceedings, the choice of the word "dismiss" in section 15 was intended to imply finality in proceedings such as to enable a defendant to plead autrefois acquit. The District Judge referred to R (on the application of O) v Stratford Youth Court [2004] EWHC 1553 (Admin) and sought to distinguish Holmes v Campbell (1998) 162 JP 655 (see below). He concluded that it was difficult to see any reason for distinguishing between cases where the prosecution failed to warn witnesses ( R v Stratford Youth Court) and cases where the prosecutor failed to attend ( Holmes v Campbell). He observed:
"Of course, normally it is possible to arrange a substitute prosecutor and accordingly the circumstances in which a court might properly dismiss a case pursuant to section 15 will be rare."
He concluded that it would not be appropriate for him to review the decision of the magistrates and so their decision "ought to bring finality in circumstances akin to autrefois acquit".
The District Judge said he was fortified in that view by the decision of R v Hendon Justices (see below). He observed that in the prosecution's request to state a case it pointed to the failure to consider the balance between prejudice to the defendant and the public interest in the issues being tried in accordance with the Overriding Objective. He commented that this point was not argued, that the respective parties' position had been that if a plea of autrefois acquit was made out it would be appropriate to stay the proceedings as an abuse of process. He said it was not suggested that the defendant could not now have a fair trial and he had the public interest in mind but he was also mindful of the need for finality in a case. He said it was his judgment that "the circumstances were akin to autrefois acquit and the rule against double jeopardy" such that the balance fell in favour of the defendant, and following the principles in R v Stratford Youth Court he ordered a stay.
On behalf of the appellant, Mr Heptonstall submitted the District Judge was incorrect to conclude that the word "dismiss" in the context of section 15 of the Act implies some finality to the proceedings such as to enable a defendant to plead autrefois acquit. He submitted further...
To continue reading
Request your trial