R (Charlson) v Guildford Magistrates Court and Another; Walsh, interested party
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SILBER |
| Judgment Date | 11 September 2006 |
| Neutral Citation | [2006] EWHC 2318 (Admin) |
| Docket Number | CO/3800/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 September 2006 |
[2006] EWHC 2318 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Mr Justice Silber
CO/3800/2006
MR J TURNER QC & MISS R BURNS (instructed by ATTRIDGE LAW, LONDON SW11) appeared on behalf of the CLAIMANT
THE DEFENDANTS AND THE INTERESTED PARTY DID NOT APPEAR AND WERE NOT REPRESENTED
I INTRODUCTION
This application raises the question of how magistrates should approach and resolve applications to issue summonses for private prosecutions after the Crown Prosecution Service had discontinued a prosecution in respect of the same conduct. Mr James Turner QC, counsel for the claimant, has contended in three separate decisions that errors have been made. He also submits that the law on this issue as set out in Stones' Justices Manual and in Archbold is inaccurate or misleading.
With permission granted by Newman J, Ian Charlson ("the claimant") seeks to quash three decisions which were made after he had laid information before magistrates requesting them to issue summonses against Victoria Walsh, who is the interested party in these proceedings.
II CHRONOLOGY
The background to these claims is a tragic accident which occurred on 19 August 2004 when Harry, the claimant's 3—year-old son was struck and killed by a car driven by the interested party at a pelican crossing on the A3 Farnham Road in Guildford.
The Crown Prosecution Service initially issued proceedings by way of summonses against the interested party alleging that she had driven without due care and attention at the time of the incident. At the inquest into Harry's death, the Coroner declined to make any findings of fact as to the state of lights of the crossings. Furthermore, he specifically refused to decide any issue of criminal liability in the matter. On 13 May 2005 the Crown Prosecution Service wrote to the claimant saying that they were discontinuing the criminal proceedings against the interested party.
The solicitors for the claimant then laid information and applied for a summons to Guildford Magistrates' Court that the interested party had caused the death of Harry by her dangerous driving on 19 August 2004. The decision of the magistrate who dealt with this application was given on 3 October 2005 and it was to refuse to issue the summons. That is the first decision which is being challenged.
The claimant took further advice and then in February 2006, he decided to make a further attempt to institute proceedings as by then confirmation had been obtained from eyewitnesses to the accident that they would give evidence in criminal proceedings. The application to issue summonses was made on 4 April 2006 to the South Western Magistrates' Court. On that day they issued summonses for careless driving and for causing death by dangerous driving against the interested party. Unfortunately, due to a misunderstanding, the magistrates were not told by counsel for the claimant that the Guildford Magistrate in the first decision had refused to issue a summons.
The magistrates were later told of the first decision of the Guildford Magistrate, whereupon they decided to withdraw the summonses. They suggested that the proper course was for the matter to be remitted to Guildford Magistrates' Court for their reconsideration. The decision of the South West Magistrates to withdraw the summonses is the second decision which is being challenged on this application.
The claimant then approached Guildford Magistrates with a request that they re-list his application so that the summonses against the interested party could be issued. On 3rd May 2006 they responded and they stated that they would not re-list the matter and that is the third decision under challenge.
The defendants to these applications are the Guildford Magistrates in respect of the first and third decisions, while the South Western Magistrates are the defendants in respect of the second decision. None of the magistrates have either been present or represented at the hearing before me.
The interested party strongly opposed permission at the oral hearing before Newman J, but she has neither been represented nor been present at this hearing. I have, however, had the benefit of written submissions from the solicitors for the interested party, in a letter dated 4 September 2006. This was prepared after those solicitors had obtained the advice of leading counsel. Those submissions accept that the first decision is flawed but they do not put forward any positive defences to the challenges to the second and third decisions.
III THE RELEVANT PRINCIPLES
Before considering the challenges to the respective decisions, it is appropriate to identify the principles which determine how magistrates should decide whether to issue summonses for private prosecutions after the Crown Prosecution Service have abandoned a previous prosecution. In section 1(1) of the Magistrates' Court Act 1980, it is stated that:
"On an information being laid before a justice of the peace that a person has, or is suspected of having, committed an offence, the justices may issue—
(a) a summons directly to that person requiring him to appear before a magistrates' court to answer the information…"
The right of an individual to bring a private prosecution has long been established. For example, the Royal Commission on Criminal Procedure 1981 (Command Paper 8092) referred to the retention of the right of private prosecution as being "an effective safeguard against improper inaction by the prosecuting authority". This passage was quoted with apparent approval by Laws LJ in R v DPP ex parte Duckenfield [2000] 1 WLR 55 at 67F.
The basic approach to the issue of summonses was explained by Lord Widgery CJ in R v Metropolitan Magistrates ex parte Klahn [1979] 1 WLR 934, when he said at page 935G, in relation to the matters to be considered by a magistrate when deciding whether to issue a summons:
"It would appear that he should [that is the magistrate] at the very least ascertain: (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.
In addition to these specific matters it is clear that he may and indeed should consider whether the allegation is vexatious: see Rex v Bros… Since the matter is properly within the magistrates discretion it would be inappropriate to attempt to lay down an exhaustive catalogue of matters to which consideration should be. Plainly he should consider the whole of the relevant circumstances."
In section 23(9) of the Prosecution of Offenders Act 1985, it is provided that the "discontinuance of any proceedings by virtue of this section shall not prevent the institution of fresh proceedings in respect of the same offence."
The question of how private prosecutions should be considered was the subject of submissions in the case of ex parte Duckenfield, to which I have already referred. In that case, it was unsuccessfully contended that the Director of Public Prosecutions, having declined to prosecute, should take over a private prosecution that had been commenced relating to the same matter and then he should discontinue that prosecution. At page 64 of the judgment, Laws LJ explained that the Director of Public Prosecutions had told the lawyers representing the defendants to the private prosecution that:
"…the Code for Crown Prosecutors sets out the general principles applied by the Service when (inter alia) deciding whether to constitute a prosecution it has taken over, or whether to institute proceedings, or whether to advise the police to do so. It is correct that the CPS decided in 1997 that the evidence available at that time was not sufficient, in its view, to provide a realistic prospect of conviction…for any offence [ie the test under the code for Crown Prosecutors]. However, it does not follow that, when considering the evidence and the representations submitted by the private prosecutor, and by yourself on behalf of your client, the CPS should seek merely to identify whether there is now any new evidence sufficient to provide a realistic prospect of a conviction… It is quite possible for a private prosecution to continue, notwithstanding that the CPS is not satisfied, on the basis of its own assessment of the strength of the evidence, that the evidence would pass the evidential sufficiency test in the Code (that there should be 'a realistic prospect of a conviction'). In broad terms, the reason for this is that section 6(1) [of the 1985 Act] specifically preserved the right of private individuals and prosecuting authorities and bodies other than CPS to bring criminal proceedings."
He then goes on to say with my emphasis added that:
"Private prosecutors are not bound to apply the Code for Crown Prosecutors when deciding whether to institute proceedings, nor do the courts apply the evidential sufficiency test in the Code when deciding whether there is a case to answer.
The Service therefore recognised it is not appropriate to intervene to terminate a private prosecution without good reason."
The Divisional Court accepted the correctness of that approach and Laws LJ said at page 68D in respect of the contrary argument that:
"…the consequence would be that the DPP would stop a private...
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