Nightcover Ltd v Cardiff Crown Court
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn DBE |
| Judgment Date | 21 November 2022 |
| Neutral Citation | [2022] EWHC 3660 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/1477/2022 |
[2022] EWHC 3660 (Admin)
THE HONOURABLE Mrs Justice Steyn DBE
Case No: CO/1477/2022
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT FOR WALES
2 Park Street
Cardiff
CF10 1ET
MR KHAN, the second claimant, appeared in person
Ms C Grubb appeared on behalf of Cardiff City Council
This is a renewed application for permission to challenge the decision of HHJ Williams sitting in Cardiff Crown Court (“the judge”) dated 11 February 2022 to refuse the claimants' application to dismiss charges. Permission was refused on the papers by Chamberlain J.
The claim relates to an ongoing prosecution in respect of food hygiene offences relating to a restaurant in Cardiff called Lilo Grill. The prosecution is brought by Cardiff City Council. The trial is due to start on 6 February 2023.
Mr Khan has represented himself today. In accordance with the general practice, the defendant court is not represented. The prosecutor, Cardiff City Council has not filed an acknowledgement of service but appears today. Although I granted permission to Ms Grubb, who appeared on behalf of Cardiff City Council, to make submissions, her instructions were limited and Cardiff City Council has in effect appeared as an observer today. As Chamberlain J observed in his order, although not required to do so, it would have been helpful if the prosecutor had engaged with these proceedings.
The decision of 11 February 2022
On 11 February 2022 the judge heard an application to dismiss the case against all four defendants, i.e. the four claimants before this court. At that time there was a 32-count indictment and all four claimants were defendants. Subsequently on 18 March 2022 the prosecution served a draft amended indictment containing 20 counts. The fourth claimant was not a defendant on that draft amended indictment. It is not clear to me whether or not the Crown Court has granted permission to amend. It may be that from what Mr Khan has said that there has been a further amendment to reduce the indictment to 10 counts. Be that as it may, the decision which is challenged took place at a time when there was a 32-count indictment in respect of all four claimants.
In submissions settled by their solicitors dated 7 February 2022, the four claimants applied to dismiss the case on the following grounds:
(a) It was not desirable or manageable for the prosecution to pursue all offences and/or all defendants;
(b) That counts 7–10 and 17–18 on the indictment required the prosecution to adduce expert evidence to support a finding of guilt, and no such evidence had been adduced;
I All counts faced by the fourth claimant should be dismissed because the counts against him were contingent on the prosecution establishing guilt on the part of Redzeta Limited, a dissolved company which is not named as a defendant;
(d) All counts faced by the third and fourth claimants should be dismissed because there was no evidence against them sufficient for them to be properly convicted, on the basis that the offences were committed with their consent or connivance or attributable to neglect on their part.
The prosecution provided a written response dated 9 February 2022.
On 10 February 2022 the defendants' counsel settled supplementary and further supplementary written submissions, in which the claimants applied to dismiss the case on the following grounds:
(ii) Point (d), that is the application to dismiss all counts faced by the third and fourth claimants, was pursued;
(ii) A further point I was raised, that the application for a summons against the defendants was invalid for failure to comply with Criminal Procedure Rule 7.2(3)(b)(i).
The defendants relied on the case of Food Standards Agency v Bakers of Nailsea [2020] EWHC 3632 (Admin) in support of the proposition that there must be at least a reference to the time limit if the application is to “demonstrate” within the meaning of Criminal Procedure Rule 7.2(3)(b)(i) that the application is made in time. The defendants submitted that no material had been provided to show that the prosecution had complied with that provision.
At the oral hearing on 11 February 2022 the defendants' counsel sensibly did not pursue points (a), (b) or (c). He sought to have the counts faced by the third and fourth claimants dismissed relying on point (d). In addition he raised point I. There was a discussion about point I, the judge observed that the law is well settled, any application to quash the issue of the summons by the magistrates' court and the sending of the information to the Crown Court by the magistrates' court would have to be made to the administrative court and could not be made to the Crown Court. That jurisdictional point was not disputed and so the only ground pursued was...
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