Ewing v Davis
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE MITTING |
| Judgment Date | 02 July 2007 |
| Neutral Citation | [2007] EWHC 1730 (Admin) |
| Docket Number | CO/10243/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 02 July 2007 |
[2007] EWHC 1730 (Admin)
Mr Justice Mitting
CO/10243/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
The claimant appeared in person
Mr Ian Potter (instructed by Messrs Cooper Carter Claremont) appeared on behalf of the Defendant
There has existed for many years a disagreement between householders to whose properties access is gained by Old Roar Road, St-Leonards-on-Sea and the owners of the land on which Old Roar Road runs. The road is owned by a company to which many adjoining landowners subscribe. It seems that the wish of most, if not all, of the shareholders is to limit residential development of plots served by the road. One non-shareholder, a Mr Davis, who disagrees, wishes to develop his garden by building two houses upon it for which it seems he has planning permission. He has for many years sought to persuade the shareholders to afford access to any new houses built in his garden or, if he cannot persuade them, to seek to have Old Roar Road declared to be some species of public highway over which vehicular access by members of the public, or at the very least by those gaining access to housing to be built on the back of his garden, can be exercised.
As unhappily is sometimes the case in these long running differences, tempers fray. Following one such incident, Mr Haywood was prosecuted for an alleged offence against Mr Davis. He was acquitted. In due course there was issued on 22nd June, four informations laid before the Hastings Magistrates' Court alleging that Mr Davis had committed criminal offences against Mr Haywood. Without dividing them up into their component parts, they in effect alleged two discrete sets of incidents. First, on 22nd December 2004, at 131 Old Roar Road, Mr Haywood's home, that Mr Davis used threatening, abusive or insulting words or behaviour towards him contrary to section 4(1)(a) or 5(1)(a) of the Public Order Act 1986 and, secondly, that, between 19th March 2005 and 1st April 2006, Mr Davis had pursued a course of conduct which amounted to harassment of Mr Haywood contrary to section 1(1) or section 2 of the Protection from Harassment Act 1997. Mr Davis, through counsel, submitted to the District Judge at Hastings Magistrates' Court, on 2nd and 3rd August, that the proceedings were an abuse of process or, alternatively, invalid. He declined to make any ruling on the abuse of process point and no question arises today about it. On 13th September 2006, he found that the prosecutor, not Mr Haywood but Terence Patrick Ewing:
"… was a third party and that the offences did not concern a matter of public interest and benefit, but concerned purely a private interest and that as the appellant [Mr Ewing] was not the aggrieved, he had no locus standi, so that the informations were invalid and the court had no jurisdiction to hear them."
He made that ruling on the footing that, in his opinion, a private prosecutor who was a third party was "required to establish that an offence being prosecuted by him was not just an individual grievance but had a public interest and benefit." He conducted a exhaustive analysis of the Victorian and more recent authorities in reaching that conclusion.
The question for this court is whether his conclusion was right. It is necessary to say a little about Mr Ewing. He has no personal interest in the proceedings. He tells me, and I accept, that he knows Mr Haywood and has agreed with him to prosecute these matters, not on behalf of Mr Haywood but by himself. He is a well-known litigant in these courts and is the subject of an order under section 42 of the Supreme Court Act 1981 but only in respect of civil proceedings. These proceedings are criminal, not civil. Accordingly, he does not require the permission of a High Court judge to bring them.
The foundation for the District Judge's ruling is a statement in Stone's Justices' Manual in the 2006 edition at paragraph 1–7427. The rules governing the laying of informations are now contained in Rule 7.1 of the Criminal Procedure Rules 2005, which provides:
"An information may be laid or compliant made by the prosecutor or complainant in person or by his counsel or solicitor or other person authorised in that behalf."
In the notes to that rule, the editor states:
"Unless the information is required by statute to be laid by any particular person any person may lay it where the offence is not an individual grievance, but a matter of public policy and utility, and concerns the public morals…"
The authorities cited for that proposition, which I will analyse in due course, are Coles v Coulton [1860] 24 JP 596, Back v Homes [1887] 51 JP 693, Giebler v Manning [1906] 1 KB 709 and Lake v Smith [1911] 76 JP 71. The editor goes on to observe:
"In modern language, the test may be restated by identifying a requirement that the prosecution established a public interest and benefit as opposed to a purely private interest in criminal proceedings. Accordingly, prosecutions are commonly fought by bodies to protect copyright and animal welfare. Also, subject to vires, bus or train companies which seek to protect their staff from violence are entitled to commence prosecution in the event that there is a requirement to do so. Where a chief executive of a company is alleged to have been assaulted by a shareholder at the annual general the company, subject to its having relevant authority to do so, is entitled to institute criminal proceedings, which it did through an individual informant, there being sufficient public interest in the management of company meetings of this type."
The authority cited in that is R (Gladstone Plc) v Manchester City Magistrates' Court [2005] 1 WLR 1987.
In an earlier passage in Stone, paragraph 1–380, the law is more succinctly stated. This matter, as far as I can tell, has appeared in editions of Stone for a number of years:
"Where the offence is not an individual grievance, but is a matter of public policy and utility, and concerns public morals, any person has the general power to prosecute, unless the statute gauging the offence contains some restriction or regulation limiting the right to some particular person or party."
The authority for that proposition is R v Hicks [1855] 19 JP 515.
Mr Ewing submits that an analysis of the old and, with one exception, modern authorities demonstrates that someone in his position has the right to prosecute for an offence said to have been committed against a provision of a public general act. It is necessary therefore to examine the authorities that underlie the statements of principle in Stone.
The principles established by those authorities are not in any way fettered or qualified by modern statutes. The relevant modern provision is to be found in section 6(1) of the Prosecution of Offences Act 1985, which provides:
"Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director's duty to take over the conduct of proceedings does not apply."
As both Mr Ewing and Mr Potter, who appears for Mr Davis, accept, that section neither qualifies nor extends established rights.
A modern statement of general principle is to be found in the speech of Lord Diplock in Gouriet v Union of Post Office Workers [1978] AC 435 at 497H to 49B:
"In English public law every citizen still has the right, as he once had a duty (though of imperfect obligation), to invoke the aid of courts of criminal jurisdiction for the enforcement of the criminal law by this procedure. It is a right which nowadays seldom needs to be exercised by an ordinary member of the public, for since the formation of regular police forces charged with the duty in public law to prevent and detect crime and to bring criminals to justice, and the creation in 1879 of the office of Director of Public Prosecutions, the need for prosecutions to be undertaken (and paid for) by private individuals has largely disappeared: but it still exists and is a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law."
In Victorian times it was treated as axiomatic that a member of the public had an unfettered right to prosecute save in respect of offences said to have been committed against certain local acts. The starting point is R v Hicks [1855] 19 JP 515, in which the court of the Queen's Bench considered the right of a private individual to prosecute for an offence under the Torquay Market Act 1852. That Act established a market in Torquay and gave to the market operator the right to set up a market and to prosecute and in respect of offences which it prosecuted to receive a sum not exceeding 40 shillings as a forfeit. The Torquay Market Act 1852 was a local act. That fact is significant, as is apparent from the words of Lord Campbell CJ in holding that only the operators of the market could bring the prosecution under section 31 of the Act:
"The clause on which this conviction proceeds appears to have been framed solely and exclusively for the protection and benefit of the Torquay market company … This enactment is not for the benefit of the inhabitants of Torquay, nor of licensed hawkers, but merely for the benefit of the company, that they may be reimbursed the expenses they have incurred from purchasing the new market-place and erecting sheds and...
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