R (Cunliffe) v West London Magistrates' Court; R (Cunliffe) v Ealing Magistrates' Court; R (Cunliffe) v Hastings Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAY,MR JUSTICE FORBES |
| Judgment Date | 06 July 2006 |
| Neutral Citation | [2006] EWHC 2081 (Admin) |
| Docket Number | CO/841/2006, CO/1450/2006 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 06 July 2006 |
[2006] EWHC 2081 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
QUEEN'S BENCH DIVISION
Lord Justice May
Mr Justice Forbes
CO/841/2006, CO/1450/2006
CO/3212/2006
MR J MCGUINNESS QC AND MR J SMITH (instructed by Ashfords) appeared on behalf of the CLAIMANT
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
Forbes J will give the first judgment.
The claimant in these applications for judicial review is the general manager of Intoximeters UK Limited, a subsidiary of Intoximeters Inc of St Louis Missouri, USA. Intoximeter Inc is the sole owner and sole director of Intoximeters UK Limited (the Company). The Company provides breath alcohol testing instruments to police forces in the United Kingdom. The Company's instrument is known at the intoximeter EC/IR. The Company provides approximately 50 per cent of the breath testing instruments in the United Kingdom, approximately 320 instruments altogether. The claimant's contract of employment contains a confidentiality clause prohibiting disclosure of any material considered by the parent company to be commercially confidential.
In these three linked sets of proceedings the claimant seeks appropriate relief by way of judicial review (in particular, quashing orders) of various decisions to issue a witness summons pursuant to section 97 of the Magistrates' Courts Act 1980 (as amended) requiring his attendance at the appropriate Magistrates' Court as follows:
"(1) that of Deputy District Judge Cooper dated 11 January 2006, in respect of a hearing at Hasting Magistrates' Court on 27 February 2006 (CO/3212/2006: hereafter "the Hastings case");
(2) that of the Justices sitting at West London Magistrates' Court on 28 October 2005 in respect of a hearing on 9 January 2006 (CO/841/2006: hereafter "the West London case"); and
(3) those of District Judge Barnes and District Judge Browning made on 15 September 2005 and 6 December 2005 respectively with regard to hearings at Ealing Magistrates' Court on 6 and 19 December 2005 (CO/1456/2006: hereafter "the Ealing case").
The first point addressed by Mr McGuiness QC, on behalf of the claimant, in his very helpful written submissions, concerned the jurisdiction of this court to hear and determine these applications. Mr McGuinness accepted that there is a line of authority to the effect that the Administrative Court has no jurisdiction to consider judicial review of interlocutory decisions of a Magistrates' Court. The relevant principles are set out in the judgment of Kennedy LJ in Hoar-Stevens v Richmond Magistrates' Court [2003] EWHC 266O Admin at paragraph 2 in the following terms:
"Normally this court will not entertain an application for a quashing order in relation to a decision made in a magistrates' court where the proceedings in that court are not complete. In R v Rochford Justices ex-parte Buck (1978) 68 Cr App R 114 it was said that there is no jurisdiction to do so, and a distinction was drawn between an order to direct a magistrate to hear and determine a matter, which can be obtained if he refuses to do so, and an order, as Cockburn CJ put it in Carden (1879) 5 QBD 1 at 5, "to control the magistrate in the conduct of the case or to prescribe to him the evidence which he shall receive or reject." Such control, it was said, could only be exercised when the case was at an end. In Buck the prosecution had sought to introduce certain evidence which the justices ruled inadmissible. The matter was then adjourned to enable the prosecution to test the ruling in the Divisional Court. When giving the judgment in this court Lord Widgery CJ said that the decision to adjourn was wrong. The prosecution were asking this court to do what Cockburn CJ had said could not be done, that is to say to exercise a measure of control over the way the magistrates try the case. At page 118 he said:
"The obligation of this Court to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both to summary trial and to committal proceedings.
Accordingly, I would be prepared to dispose of this matter on the first argued point, namely, that there was no jurisdiction in this Court to interfere with the justices' decision, that not having been reached by termination of the proceedings below."
However, Mr McGuinness submitted that there are a number of authorities which illustrate that judicial review proceedings can be used during the course of Magistrates' Court and Crown Court proceedings in order to quash witness summonses issued pursuant to section 97 of the Magistrates' Courts Act 1980. Those authorities include Hove Justices ex-parte Donne [1967] 2 All ER 1253, R v Skegness Magistrates' Court ex-parte Cardy [1985] RTR 49, Streames v Copping (1985) QB 920, R v Derby Magistrates' Court ex-parte B [1996] AC 487 and Howe v South Durham Magistrates' Court [2004] EWHC 362. Examination of those authorities shows that Mr McGuinness' submission is plainly correct.
Mr McGuinness therefore contended that the issue of a witness summons is in a somewhat different category to other interlocutory decisions of the Magistrates' Court and that there is jurisdiction for the witness summonses to be challenged in such cases by way of judicial review. Mr McGuinness suggested that this is particularly so since the claimant is not a party to the proceedings in the court below and would have no other means of appealing a ruling that was erroneous. I agree with that submission and I am satisfied that this court does have jurisdiction to hear and determine the present applications.
I now turn to summarise the relevant legal principles that apply in each of these cases.
Each of the summonses against the claimant was issued under section 97(1) of the Magistrates' Court 1980, as amended by section 169(2) of the Serious Organised Crime and Police Act 2005. Section 97(1), as amended, provides as follows:
"(1) Where a justice of the peace is satisfied that—
(a) any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, at the summary trial of an information or hearing of a complaint… by a magistrates' court, and
(b) it is in the interests of justice to issue a summons under this subsection to secure the attendance of that person to give evidence or produce the document or thing,
the justice shall issue a summons directed to that person requiring him to attend before the court at the time and place appointed in the summons to give evidence or to produce the document or thing."
Mr McGuinness therefore submitted that the test to be applied by the Magistrates' Court, both in relation to a witness giving evidence and in relation to documents, is whether (1) the person is likely to be able to give "material evidence" or the document is likely to be "material evidence" and, in either case, (2) it is in the interests of justice to issue the summons. I agree with that submission and would stress the importance of both limbs being satisfied before any summons is issued.
Mr McGuinness pointed out that the meaning of the term "material evidence" in section 97(1) of the 1980 Act has been considered in a number of authorities and a number of principles have been established. In particular, he referred to the case of R v Reading Justices ex-parte Berkshire County Council [1996] 1 Cr App R 239 in which the Divisional Court considered the test of materiality in relation to documents. In the course of his judgment in that case Simon Brown LJ, as he then was, summarised the relevant principles as follows (see paragraph F, page 93):
"The central principles to be derived from those authorities are as follows:
(i) to be material evidence documents must be not only relevant to the issues arising in the criminal proceedings, but also documents admissible as such in evidence;
(ii) documents which are desired merely for the purpose of possible cross-examination are not admissible in evidence and, thus, are not material for the purposes of section 97;
(iii) whoever seeks production of documents must satisfy the Justices with some material that the documents are 'likely to be material' in the sense indicated, likelihood for this purpose involving a real possibility, although not necessarily a probability;
(iv) it is not sufficient that the applicant merely wants to find out whether or not the third party has such material documents. This procedure must not be used as a disguised attempt to obtain discovery."
The materiality of documents relating to breath testing was specifically considered by the Divisional Court in R v Tower Bridge Magistrates' Court, ex-parte DPP [1988] Crim LR 759. In that case a witness summons issued by a Stipendiary Magistrate compelling a police officer to produce the service record and log of a breath-testing instrument was quashed on the basis that it was a "fishing expedition." Furthermore in R v Skegness Magistrates' Court ex-parte Cardy a summons issued to compel the manufacturer of a breath-testing machine to produce documents relating to the functioning and design of the breath-testing instrument was quashed as a "fishing expedition" and because the documents were not admissible per se because they would need an expert witness...
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Table of Cases
...DC! 386 Cunliffe, R on the application of, v West London Magistrates’ Court, v Ealing Magistrates’ Court, v Hastings Magistrates’ Court [2006] EWHC 2081 ..................................................................................................... ! (Admin), DC! 405 .......................
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Evidence
...Court; R on the Application of Cunliffe v Ealing Magistrates’ Court; R on the Application of Cunliffe v Hastings Magistrates’ Court [2006] EWHC 2081 (Admin), unreported, 7 July 2006, QBD (DC) Witness summonses under s 97, Magistrates’ Courts Act 1980 should be issued only when both limbs of......