R DPP v Sunderland Magistrates' Court
| Jurisdiction | England & Wales |
| Judge | Lady Justice Rafferty |
| Judgment Date | 31 January 2014 |
| Neutral Citation | [2014] EWHC 613 (Admin) |
| Docket Number | CO/222/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 January 2014 |
[2014] EWHC 613 (Admin)
Lady Justice Rafferty DBE
Mr Justice Jay
CO/222/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr T Little (instructed by the Crown Prosecution Service) appeared on behalf of the Claimant
Mr R Smith QC (instructed by the Crown Prosecution Service) appeared on behalf of the Interested Parties
The Defendant did not attend and was not represented
(As approved)
Mr Beardmore, a member of the public, on 19 August 2013 laid an information before Gateshead Magistrates in support of an application for a summons requiring Miss Webster, an employee of the Independent Police Complaints Commission, to answer a charge of misconduct in public office.
That summons was issued on 1 October 2013. On 6 November 2013 Mr Enzor, Deputy Chief Crown Prosecutor for the NE of England by letter put Mr Beardmore on notice that in reliance upon section 6(2) of the Prosecution of Offences Act 1985 he intended to take over the conduct of the prosecution. As a consequence proceedings were discontinued, the ground being insufficient evidence for a realistic prospect of conviction. Mr Enzor attached to his letter a detailed note alerting Mr Beardmore to his entitlement to a review of the decision. Mr Beardmore sought one.
On 13 December 2013 a specialist prosecutor provided detailed reasons. She had identified no evidence that Miss Webster had been wilfully negligent in the exercise of her duty or that in exercising her duty she had misconducted herself.
On 29 November 2013 Mr Beardmore made two separate applications by way of information on oath supporting his application for summonses requiring Miss Williams and Mr Enzor to answer allegations of misconduct in public office. That laid against Miss Williams related to her refusal as Chief Crown Prosecutor to take action Mr Beardmore had requested. The precise details need not trouble us.
That laid against Mr Enzor related to a letter from him to Mr Beardmore, dated 6 August 2012. It confirmed that it was not within the power or remit of the Crown Prosecution Service to take action in response to Mr Beardmore's earlier letter of 25 June 2012 which recited allegations of criminal misconduct against the following: officers of Northumbria Police including the Chief Constable, officers of Durham Constabulary, Her Majesty's Attorney General, the Chief Executive of the Serious Fraud Officer, a Member of Parliament, eight staff employed by the Independent Police Complaints Commission, a former legal officer, "many more persons" and a named Detective Chief Inspector.
The summonses at the heart of this claim, those in respect of Miss Williams and Mr Enzor, were issued by a lay magistrate sitting at Sunderland Magistrates' Court on Christmas Eve 2013. They were re-issued on 7 January 2014. No point is taken as to the re-issue. Each, supported on oath by Mr Beardmore, was without further inquiry issued.
The claimant's submission is that no magistrate, properly advised and correctly applying his mind to the elements of the offence of misconduct in public office, could reasonably have issued a summons based on Mr Beardmore's informations. Consequently, the only reasonable conclusion, so the argument goes, is that the elements of the offence were not established and/or that the informations were vexatious. Further information so as to consider both those points should have been sought before issue, the failure to seek it Wednesbury unreasonable. The Respondent relies in particular on documents: a 20-page letter from Mr Beardmore to Miss Williams, the late July response to it, and Mr Enzor's 6 August letter.
Those working in Sunderland Magistrates' Court knew as early as November 2013 of what the Claimant calls the collateral and vexatious nature of these private prosecutions, and yet, he argues, allowed the informations on Christmas Eve to go before a lay magistrate who should have been offered assistance as to the legal framework and at the very least put on notice as to concerns about the motives for those private prosecutions. The Claimant submits that a 20 December 2013 decision (to which we shall shortly turn) to put the informations before the Justice of the Peace was designed to avoid a potential public law claim, a consideration without relevance to the requirements of section 1(1)(a) of the Magistrates' Court Act 1980. It reads:
"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 the magistrates' court to answer the information…"
A letter from the Clerk to the Justices to Mr Beardmore dated 13 November 2013 reads:
While the informations relate to an offence known to the law and the elements of the offence may be prime facie present (ie the allegation that the defendant abused his/her power as a public official) the reality is that this is a collateral attack on the decision of the CPS not to prosecute. That is a matter which ought properly to be considered by the Administrative Court and, in my opinion, therefore, this is an appropriate case for which we should decline jurisdiction by refusing to issue a summons."
On 20 December 2013, a note included in the chronology prepared by the Magstrates' Court reads:
"DJ Roger Elsey considers the informations dated 29 November 2013 and informs the legal adviser [named] that the summonses could now be issued and the informations should be laid before a lay magistrate for consideration. The reason to issue the summons was the view that Mr Andrew Beardmore was likely to judicially review HMCTS."
To this puzzling comment we shall return.
When considering whether to issue a summons, the magistrate should at the very least ascertain (a) whether the allegation is of an offence known to law and if so whether the essential ingredients of the offence are prima facie present, (b) if the offence alleged is not out of time (c) that the court has jurisdiction (d) whether the informant has the necessary authority to prosecute: R v West London Metropolitan Stipendiary Magistrateex parte Klahn [1979] 1 WLR 933.
In addition, the magistrate is adjured to consider whether the allegation is vexatious. He enjoys a residual discretion to hear from proposed defendants.
In Attorney General's Reference (No 3 of 2003) [2005] QB 73 the court defined the common law offence of misconduct in public office thus: A public officer, acting as such, wilfully neglecting to perform his duty and/or wilfully misconducting himself to such a degree as to amount to an abuse of the public's trust in the office holder, without reasonable excuse or justification. The court pointed out that...
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