London Borough of Barking and Dagenham v Argos Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Edis,Mrs. Justice McGowan |
| Judgment Date | 08 June 2022 |
| Neutral Citation | [2022] EWHC 1398 (Admin) |
| Docket Number | Case No: CO/3707/2021 Case No: CO/3459/2021 |
| Court | Queen's Bench Division (Administrative Court) |
[2022] EWHC 1398 (Admin)
Lord Justice Edis
Mrs Justice McGowan
Case No: CO/3707/2021
Case No: CO/3822/2021
Case No: CO/3459/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Adam Heppinstall QC and Thomas Mallon (instructed by London Borough of Barking and Dagenham) for the Prosecutor
David Hercock (instructed by TLT LPP) for Argos Limited
Hearing date: 10 May 2022
Approved Judgment
Introduction
There are two appeals by case stated and one claim for judicial review before the court. The parties are the London Borough of Barking and Dagenham, whom I will call “the prosecutor”, and Argos Limited, whom I will call “Argos”. The Romford Magistrates' Court is a party to the judicial review claim but has not taken any part in those proceedings, as is customary. The appeals and the judicial review claim all arise from a decision given in that court by District Judge (Magistrates' Court) Holdham (“the judge”). She heard argument on 15 July 2021, and gave a written ruling on 20 September 2021, which was later amended on 14 October 2021.
She decided:-
i) That the application for a summons which was the basis on which a summons was issued by the Court on 19 June 2020 was a nullity. This was because she held that she was bound so to find by a decision of this court in Food Standards Agency v Bakers of Nailsea Ltd [2020] EWHC 3632 (Admin), decided on 3 November 2020 (“ Bakers of Nailsea”). The information which led to the issue of the summons did not demonstrate the relevant time limit for prosecutions, as required by CrimPR 7.2(3)(b). This is the subject of an appeal by case stated by the prosecutor (“the nullity appeal”).
ii) That she had no jurisdiction to hear an argument advanced on behalf of Argos that the prosecution was an abuse of the process of the court. This is the subject of an appeal by case stated by Argos to protect the position if the nullity appeal succeeds which would resurrect the proceedings. This appeal is conceded by the prosecutor because of the decision of this court in Mansfield v Director of Public Prosecutions [2022] QB 335 which was decided on 3 November 2021, and so was not before the judge. The magistrates' court does have jurisdiction to determine the species of alleged abuse of process which arises in this case. This appeal is the subject of an agreed order for which we are grateful, and we need say nothing more about it, until we come to deal with consequential issues.
The judge did not therefore decide whether the abuse of process argument succeeded or not. The judicial review claim, issued by Argos, contends that she should have done and seeks a ruling from this court exercising its concurrent jurisdiction with that of the Romford Magistrates' Court that these proceedings are an abuse of process. The prosecutor responds that we should simply remit that issue to the judge for determination, and that, if we do decide the issue, we should dismiss the application because these proceedings are not an abuse of process.
THE NULLITY APPEAL
The issue of the summons
On 19 June 2020, the prosecutor, the London Borough of Barking and Dagenham, applied for a summons at Barkingside Magistrates' Court and a summons was issued on the same day, requiring the defendant Argos to appear at Barkingside Magistrates' Court on 23 October 2020.
The application, by statute known as an “information”, was laid before the clerk to the justices by Fiona Taylor, the Director of Legal Services of the prosecutor, on a prescribed form. The material parts are as follows:-
WHO STATES THAT: ARGOS Limited
OF: 489–499 Avebury Boulevard, Milton Keynes, UK, MK9 2NW
Company Number: 01081551
ON 23 December 2019
PLACE: Barking in the County of Essex
OFFENCE 1: On or about 23rd December 2019, ARGOS Limited, did at Argos (in Sainsbury's) 97–131 High Road, Chadwell Heath, RM6 6PB, by the act of another, sell a knife to a person under the age of eighteen.
CONTRARY to s.141A(1) Criminal Justice Act 1988
The summons which was then issued was in materially identical terms with the addition of the date, time and place at which Argos was summoned to appear.
The issue of a summons is a judicial act by the court which acts, initially at least, on the material supplied by only one party. There is no finding in the stated case about who decided it should be issued or on what grounds. It is to be inferred that the court accepted the information at face value and proceeded to issue the summons for that reason.
The offence charged is a summary only offence to which section 127 of the Magistrates' Courts Act 1980 (MCA 1980) applies. This provides
127 Limitation of time.
(1) Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.
Section127(2) disapplies the 6 month time limit in all cases where the offence charged may or must be tried on indictment. There is a significant number of enactments which expressly make different provision for time limits. Section 141A(1) of the Criminal Justice Act 1988 is not one of them, and proceedings must be brought within 6 months.
The Criminal Procedure Rules
Part 7 of the Criminal Procedure Rules deals with “Starting a Prosecution in a Magistrates' Court”. It covers all the methods of starting such proceedings, but the present proceedings involve a prosecutor who wanted the court to issue a summons under section 1 of the MCA 1980 and I will focus on the Rules which deal with that.
Section 1 of the MCA 1980 deals with the jurisdiction to issue summonses and the rather more circumscribed jurisdiction to issue warrants. The provision which concerns summonses is as follows:-
Jurisdiction to issue process and deal with charges
1. Issue of summons to accused or warrant for his arrest.
(1) On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justice may issue—
(a) a summons directed to that person requiring him to appear before a magistrates' court to answer the information,
Rule 7.2 governs “application for summons etc.”, and the parts relevant to the applications for the issue of a summons by a public authority (such as the prosecutor) for a summary only offence are as follows:-
7.2.—Application for summons, etc.
(1) A prosecutor who wants the court to issue a summons must—
(a) serve on the court officer a written application; or
(b) unless other legislation prohibits this, present an application orally to the court, with a
written statement of the allegation or allegations made by the prosecutor.
(2) A prosecutor who wants the court to issue a warrant must—
(a) serve on the court officer—
(i) a written application, or
(ii) a copy of a written charge that has been issued; or
(b) present to the court either of those documents.
(3) An application for the issue of a summons or warrant must—
(a) set out the allegation or allegations made by the applicant in terms that comply with rule 7.3(1) (Allegation of offence in application or charge); and
(b) demonstrate—
(i) that the application is made in time, if legislation imposes a time limit, and
(ii) that the applicant has the necessary consent, if legislation requires it.
……..
(10) Where an offence can be tried only in a magistrates' court, then unless other legislation otherwise provides—
(a) a prosecutor must serve an application for the issue of a summons or warrant on the court officer or present it to the court; or
(b) an authorised prosecutor must issue a written charge, not more than 6 months after the offence alleged.
Rule 7.3(1) provides:-
7.3.—Allegation of offence
(1) An allegation of an offence in an application for the issue of a summons or warrant or in
a charge must contain—
(a) a statement of the offence that—
(i) describes the offence in ordinary language, and
(ii) identifies any legislation that creates it; and
(b) such particulars of the conduct constituting the commission of the offence as to make clear what the prosecutor alleges against the defendant.
The key provision for present purposes is CrimPR 7.2(3)(b)(i). It was introduced into the Rules on 2 April 2018. It was considered by this court in Bakers of Nailsea which the judge held bound her to conclude that the application for a summons in the present case was a nullity. In her conspicuously clear and careful judgment she said were it otherwise she would have concluded that the application was not a nullity. She referred to another case in which a District Judge had held that he was not bound by the decision in Bakers of Nailsea because no argument had been heard in that case about whether non-compliance with CrimPR 7.2(3)(b)(i) renders the summons a nullity or whether it can be cured by the provision of such further information as fairness requires. She felt unable to take the same course after an examination of the decision in Bakers of Nailsea and authorities on the rules of precedent.
She therefore posed the following questions in the Case Stated;-
i) Was I correct to consider myself bound by the decision in [ Bakers of Nailsea] in relation to whether the prosecution's application for a summons complied with Criminal Procedure Rule 7.2(3)(b)(i)?
ii) Does the prosecution comply with...
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