R v Highbury Corner Magistrates ex parte Mohamed Tawfick
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE PILL |
| Judgment Date | 21 October 1993 |
| Judgment citation (vLex) | [1993] EWHC J1021-3 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | No: CO-1234-93 |
| Date | 21 October 1993 |
[1993] EWHC J1021-3
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Before: Lord Justice Kennedy and Mr Justice Pill
No: CO-1234-93
MR J CAUSER (instructed by Iqbal & Co., 102 Queensway, London W2 3RR) appeared on behalf of the Applicant.
The Respondent did not and was not represented.
Thursday, 21st October 1993
Mr Justice Pill will give the first judgment.
Mohamed Tawfick seeks to quash a decision of the Highbury Corner Magistrates by which they refused to issue a summons which he sought. The decision was made by the Clerk to the Justices, Alan Lucas Gooch Esq., Senior Chief Clerk at the Court. Mr Tawfick also seeks an order of mandamus directed at the Justices to issue a summons.
The events complained of by the Applicant and as a result of which he wishes to issue a summons occurred in the early hours of the morning on 10th April 1992. Mr Albert Nelson visited the Applicant's home. It is alleged by the Applicant that he was assaulted and beaten by Mr Nelson and sustained injuries. The Applicant attended at the Emergency and Accident Department of the local hospital. Four days later, on 14th April 1992, the Applicant and his girlfriend, Miss Gumbs, gave formal written statements to the police with respect to the incident. There was a background to the incident in the sense that the parties knew each other, and indeed Mr Nelson was the father of a young child of Miss Gumbs.
In September 1992 the police supplied the Applicants with copies of the statements which had been made to the police and also a copy of a statement which Dr Homewood, the doctor who had treated the Applicant at hospital, had given on the 13th May.
In December 1992, the Crown Prosecution Service informed the Applicant that they were not going to take criminal proceedings against Mr Nelson. Thereafter, he attended at the Magistrates' Court with a view to pursuing a private prosecution against Mr Nelson. I need not set out the sequence of events in great detail. Mr Tawfick attended the Court on several occasions and spoke to officers there, including on at least one occasion Mr Gooch.
Notwithstanding the several visits and attempts made by the Applicant to obtain the issue of a summons, Mr Gooch declined to do so. He has sworn an affidavit to which I will refer. There is in the bundle of documents a record of the material which was available to the Applicant. There is no doubt that the Clerk, Mr Gooch, who made the decision, did see a statement which the Applicant had made sometime after the events complained of. He made it in formal circumstances in that it is witnessed by a representative of a firm of solicitors. In that statement the Applicant stated that at about 3 am the doorbell of his home went. "On opening the door I was attacked by Albert Nelson with another two in the presence of a uniformed police officer. I suffered a broken rib and other injuries."
At the same time, that is the 5th February 1993, Miss Gumbs also made a statement in similar circumstances. She said: "Tawfick went to open the door. He was attacked by Albert Nelson with another two men. When I ran down stairs Tawfick was laying on the ground and Albert Nelson with another man was kicking him. I was screaming as I was so worried about Tawfick. He suffered a broken rib and other injuries all over his body."
In his statement to the police made on 14th April 1992, the Applicant described the incident in these terms: "I then opened the door and Albert hit me with something on my forehead. He then grabbed my right arm and at that point I was hit with something over my right ear by another man. Then I fell to the ground and I remember being kicked around my body. I would say that the whole time the assault took place was a minute. Michelle came downstairs screaming." He then described how he went to the Royal Free Hospital where he was seen by a doctor. He said that he had a cut to his forehead, a small cut to his right ear and "she" —that is the doctor —"told me that I had a cracked rib".
In her police statement, to which I need refer only briefly, Miss Gumbs said that she heard the sound of a fight and after running down the stairs "I could see Albert kicking Tawfick in the ribs and Tawfick was curled up on the floor."
There is no doubt that medical evidence was also before the Justice's Clerk. In the statement made on 13th May 1992 Dr Homewood, who was a casualty officer at the Royal Free Hospital, recorded the complaint by the Applicant that he had been knocked to the ground by four persons. She described the injury in these terms: "He had sustained bruises to the right ear, the right side of his forehead and his left cheek. Also bruising on his right occipital region. He had a 1 cm laceration in the centre of his forehead which did not require suturing. He had an abrasion approximately 3 cm x 6 cm on his right upper arm and abrasion approximately 3 cm x 4 cm on his left elbow left elbow. He had bruising over his lower rib cage anteriorly. There were no rib fractures on chest X-ray or any other lung problems."
The Applicant obtained further medical reports from his own general practitioner and these were submitted to the Court. He attended his own doctor, Dr Roy Macgregor on 13th April 1992. Dr Macgregor reported on 15th May 1992 that: "On appearing in the surgery he had a graze over his right eye about two and a half inches long above the eyebrow. He had small scratches on the left side of his lower cheek. He had a small laceration about 1 cm over the forehead…… He had a right upper arm graze…..a bruise on the left upper chest and…..bruising over the nipple."
On the 24th April the patient re-attended and still had "signs consistent with a severe rib injury, possible fracture although this is not confirmed either clinically or on radiology" Dr Macgregor further reported on 22nd January 1993. He referred to a residual scar on the forehead and residual discolouration on the mid upper arm. He also stated that he "did feel the findings were consistent with a rib fracture"……"There is no satisfactory way of either proving or disproving the presence of a fracture".
Mr Causer for the Applicant has referred us to the authorities on the question of the issue of summonses when requested by an Applicant. The issue of a summons is the result of a judicial act ( R v Wilson, ex...
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