R v Derby Magistrates' Court, ex parte B

CourtHouse of Lords
JudgeLord Keith of Kinkel, Lord Mustill, Lord Taylor of Gosforth, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead
Judgment Date22 Jun 1995
JurisdictionEngland & Wales

[1995] EWHC J0622-9

House of Lords

Lord Keith of Kinkel

Lord Mustill

Lord Taylor of Gosforth

Lord Lloyd of Berwick

Lord Nicholls of Birkenhead

Derby Magistrates Court
Ex Parte B
(Appellant) (First Appeal)
Derby Magistrates Court
Ex Parte B
(Appellant) (Second Appeal) (Consolidated Appeals)


Lord Keith of Kinkel

My Lords,


For the reasons given in the speech to be delivered by my noble and learned friend Lord Taylor of Gosforth, which I have read in draft and with which I agree. I would allow these appeals.

Lord Mustill

My Lords,


I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Taylor of Gosforth. For the reasons which he gives, I, too, would allow these appeals.

Lord Taylor of Gosforth

My Lords,


These consolidated appeals raised important questions concerning legal professional privilege and the scope of section 97 of the Magistrates' Courts Act 1980. The appellant challenged by way of judicial review the issue by the Stipendiary Magistrate for Derby of Summonses pursuant to section 97 requiring him and his former solicitor to produce certain documents in the course of committal proceedings against the appellant's stepfather. The Divisional Court refused the application but certified points of law of general public importance. This appeal was presented by leave of your Lordships' House Since the committal proceedings relate to events which occurred as long ago as April 1978 we announced our decision to allow the appeal on 22 June 1995 to enable those proceedings, which have been hanging fire, to proceed. We now give our reasons.


On 3 April 1978, a 16 year old girl was murdered. Although she was stabbed many times, a number of the wounds were shallow and the cause of death was strangulation. On 9 April the appellant was arrested. He at first denied involvement but subsequently admitted being solely responsible for the murder. On 10 April he made a statement to that effect (the first account). In it he alleged that the girl had sexually assaulted and provoked him whereupon he had stabbed her. Proceedings were commenced against him charging him with murder. Preparations for trial were well advanced when, on 6 October 1978 a psychiatrist visited the appellant. Following that visit, on 8 October, the appellant changed his story. He made a statement alleging that his stepfather had killed the girl. Although he, the appellant, was present and took some part he did so under duress ("the second account").


In November 1978, after a trial at Nottingham Crown Court in which the appellant relied upon "the second account," he was acquitted.


On 14 December 1978, when interviewed by a senior police officer, the appellant repeated his "first account" that he alone had killed the girl. However when his solicitor arrived he retracted that confession.


On 16 April 1980 the appellant made a statement to the police reaffirming "the second account."


On 1 April 1987, the mother of the deceased girl issued a writ against the appellant and his stepfather alleging assault and battery against both. In July 1991 the civil action came on before Rougier J. It lasted some five days and the appellant gave evidence implicating his stepfather who did not give evidence. On 30 September 1991 Rougier J. gave judgment. He held that on the evidence before him he was sure that the sole cause of the girl's death was strangulation by the stepfather but that so far as the stab wounds were concerned the appellant and his stepfather were joint tortfeasors.


On 7 July 1992 the stepfather was arrested and charged with murder. On 8 October 1992 the Stipendiary Magistrate refused a motion to stay the proceedings on the basis that they were an abuse of process. An application for judicial review of that decision was refused by the Divisional Court in February 1994.


On 20 June 1994 committal proceedings against the stepfather began. The appellant was called on behalf of the Crown to give evidence. In the course of cross-examination he was asked about instructions he had given to the solicitors acting for him in 1978 between his giving "the first account" and "the second account." The appellant declined to waive his privilege. Accordingly, an application was made on 21 June for the Stipendiary Magistrate to grant a witness summons directed to the solicitor seeking the production of privileged documentation, in particular:

"All attendance notes and proofs of evidence which disclose the factual instructions of [the appellant] in defence of the charge of murder in 1978 coming into existence prior to 8 October 1978 and to exclude advice given to him by solicitors and/or counsel."


The Derby Stipendiary' Magistrate granted a witness summons pursuant to section 97 of the Magistrates' Courts Act 1980 in the terms sought.


On 8 August 1994, at the resumed hearing of the committal proceedings, the Stipendiary Magistrate issued a further summons, this time addressed to the appellant personally, but otherwise in the same terms as the first summons.


Leave to apply for judicial review of the magistrate's decision to issue the summonses, dated respectively on 28 June 1994 and 23 August 1994, were granted.


The applications were consolidated and heard together by the Divisional Court (McCowan L.J. and Gage J.), the court giving its decision on 21 October 1994. The applications were refused as was leave to appeal to your Lordships' House but the Divisional Court certified the following question:

"Whether a witness summons may properly be issued under section 97 of the Magistrates' Courts Act 1980 to compel production by a prosecution witness in committal proceedings of proofs of evidence and attendance notes giving factual instructions to his solicitor which

( a) may contain or record previous inconsistent statements by the witness; and/or

( b) which are the subject of legal professional privilege which has not been waived."


On 5 April 1995 your Lordships' House gave leave to appeal.


The case was presented and argued before your Lordships on two broad bases reflecting the two sub-paragraphs of the certified question. It is convenient to consider first whether the material sought to be produced by the summonses fell properly within the scope of section 97 of the Act of 1980. Section 97 provides as follows, so far as is relevant:

"(1) Where a Justice of the Peace … is satisfied that 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 an inquiry into an indictable offence by a Magistrates' Court … or at the summary trial of an information or hearing of a complaint by such a court and that that person will not voluntarily attend as a witness or will not voluntarily produce the document or thing, the Justice shall issue a summons directed to that person requiring him to attend before the court … to give evidence or to produce the document or thing.

(3) On the failure of any person to attend before a Magistrates' Court in answer to a summons under this section, if —

( a) the court is satisfied by evidence on oath that he is likely to be able to give material evidence or produce any document or thing likely to be material evidence in the proceedings; and

( b) it is proved on oath, or in such other manner as may be prescribed, that he has been duly served with the summons,

… and

( c) it appears to the court that there is no just excuse for the failure, the court may issue a warrant to arrest him and bring him before the court …

(4) If any person attending or brought before a Magistrates' Court refuses without just excuse to be sworn or give evidence, or to produce any document or thing, the court may commit him to custody until the expiration of such period not exceeding one month as may be specified in the warrant or until he sooner gives evidence or produces the document or thing or impose on him a fine not exceeding £2,500, or both."


The summonses were bespoken because it was assumed that in the period prior to his trial for murder, when he was admitting he had killed the girl although provoked to do so (i.e. before 8 October 1978), the appellant must have given detailed instructions to his solicitor supporting that version of the facts. Those instructions were bound to be inconsistent with the "second account" which the appellant was now repeating in his evidence at the committal proceedings against his stepfather. Accordingly, counsel for the latter wanted to be able to cross-examine the appellant on his previous inconsistent statements and if possible put them in evidence.


In agreeing to issue the summonses, the learned Stipendiary Magistrate gave his reasons. He dealt separately with the terms of section 97 and with legal professional privilege. As to the former, he said of the documents sought:

"It goes without saying that if such statements are inconsistent with (the appellant's] present testimony, they are very material to this committal and to any subsequent trial. One only has to compare the situation with such statements in the possession of the prosecution which must under the present rules inevitably and properly be disclosed. In the light of other accounts of the relevant events given to the police, as he admitted in cross-examination yesterday, it is a reasonable assumption that (the appellant's) statements of evidence will be in terms different from the allegations involving [his stepfather] which he apparently made … in a statement to the police in October 1978. That fact supports my view that the documents sought, the statement or statements, are very material to the conduct of the defence."


Thus, he sought to equate the duty of the prosecution as to disclosure of...

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