R v Lambeth Metropolitan Stipendiary Magistrate, ex parte McComb
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE MAY |
| Judgment Date | 15 November 1982 |
| Judgment citation (vLex) | [1982] EWCA Civ J1115-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 November 1982 |
| Docket Number | 82/0430 |
[1982] EWCA Civ J1115-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
(GRIFFITHS, L.J. and McCULLOUGH, J.)
Royal Courts of Justice.
The Master of The Rolls
(Sir John Donaldson)
and
Lord Justice May
82/0430
In The Matter of An Application By John Gabriel McComb for Judicial Review
And In The Matter of a Determination and Decision of Brian
Canham, Esq., Stipendiary Magistrate Sitting At Lambeth
Magistrates' Court on The 13th September, 1982.
and
MR. ANDREW COLLINS and MR. NIGEL SEED (instructed by Messrs. Gamlens) appeared on behalf of the Appellant.
MR. SIMON BROWN and MR. PHILIP VALLANCE (instructed by the Treasury Solicitor) appeared on behalf of the Respondents.
This is an appeal by John Gabriel McCamb against the refusal of the Divisional Court to grant him a declaration concerning the duties of the Director of Public Prosecutions.
His claim arises in this way. In the winter of 1978/9 there were a series of explosions in London. As a result of police investigations a man called Gerard Tuite was arrested and committed for trial at the Central Criminal Court charged with offences in connection with those explosions. Whilst awaiting trial he escaped from Brixton Prison.
At the beginning of this year the applicant was arrested and charged with substantially the same offences as Tuite, namely being concerned with various explosions in London and elsewhere during the winter of 1978/9. In due course committal proceedings were to be begun against the applicant, but before then the scene shifts to the Republic of Ireland and back to Gerard Tuite.
On the 4th March, 1982 Tuite was arrested in Ireland. No application was made to extradite him. Instead the Irish Director of Public Prosecutions charged Tuite with committing offences in England, proceeding under the reciprocal legislation which has been enacted by both countries. Tuite accordingly appeared before a special criminal court in Dublin. To enable his trial to proceed the English Director of Public Prosecutions sent to Dublin a large number of exhibits which had been produced at the English proceedings leading to the committal of Tuite for trial at the Central Criminal Court. The English Director in so acting neither informed nor sought the consent of the Central Criminal Court.
Tuite was convicted by the Dublin court and was sentenced to ten years' imprisonment. He gave notice of appeal to the Court of Criminal Appeal of Ireland. Thereupon it no doubt become the duty of the registrar of that court to obtain "all documents, exhibits and other things which appear necessary for the proper determination of the appeal or application". I quote from section 21(1) of the English Criminal Appeal Act 1968, which I feel sure has its Irish equivalent. At all events, the exhibits used at Tuite's trial came into the custody of the registrar of the Irish Court of Criminal Appeal.
I must now return to England where the English Director of Public Prosecutions was preparing for the committal proceedings in respect of the applicant. For this purpose he needed to be able to produce some of the exhibits used in Tuite's trial. Accordingly he applied to the Irish Court of Criminal Appeal for their release for this purpose. The Irish court agreed provided that the Director undertook to return the exhibits to its registrar forthwith upon the termination of the committal proceedings in respect of the applicant. It is difficult to see how the Irish court could have refrained from asking for this undertaking in view of its duty to Tuite as an actual or potential appellant.
What seems to have escaped the attention of the English Director was that if the applicant was committed for trial, those defending him might need to examine the exhibits and possibly undertake certain forensic examinations and tests upon them during the period between committal and trial.
The committal proceedings began on the 13th or 14th September and have yet to be concluded. The applicant applied for judicial review and, in the final form of the proceedings, for a declaration that "the Director of Public Prosecutions shall not permit any of the exhibits produced to the Lambeth Magistrates' Court in the course of the committal proceedings to be removed from the jurisdiction of the Crown Court without order of the Crown Court or the High Court". I should mention that the jurisdiction both of the Crown Court and of the High Court extends throughout England and Wales but not of course to any part of the Republic of Ireland.
In a word the applicant was claiming that the English Director had to seek the consent of the Crown Court or the High Court before he could comply with his unqualified undertaking to the Irish Court of Criminal Appeal. Further the applicant would no doubt seek to persuade the English courts of the need to refuse consent. If he did so, the English Director would be placed in the uneviable position of being in contempt of either the Irish or the English court.
Before giving further consideration to this problem, it is necessary to advert to the jurisdiction of this court, the civil division of the Court of Appeal. By section 18(1) of the Supreme Court Act 1981, which re-enacts section 31(1) of the Supreme Court of Judicature (Consolidation) Act 1925,
"No appeal shall lie to the Court of Appeal except as provided by the Administration of Justice Act, 1960, from any judgment of the High Court in any criminal cause or matter".
The exception is not material for present purposes and we have only to consider whether the refusal of the Divisional Court was a judgment "in any criminal cause or matter". If it was, this court has no jurisdiction.
Until comparatively recently the leading authority on this topic was Amand v. The Home Secretary (1943) Appeal Cases 147. The relevant learning is to be found in the speeches of Viscount Simon, L.C. at page 156 and Lord Wright at pages 163–4. Those speeches seemed to suggest that the words "in any criminal cause or matter" should receive a wide construction and that a distinction had to be drawn between the proceedings in which the order under appeal was made and the underlying proceedings to which the relief sought by the applicant would apply if granted. It was the latter proceedings which must not be a criminal cause or matter. If that was the correct view of that decision, this court would have no jurisdiction, for the underlying proceedings here were clearly a criminal cause or matter.
However Amand's case was considered by this court in Reg. v. Southampton Justices, ex parte Green (1976) 1 Queen's Bench 11 in which application was made to quash an order estreating a recognizance which had been entered into by a surety conditioned to ensure the attendance of the accused at a criminal trial. It was also considered in Reg. v. Crown Court, ex parte Brownlow (1980) 1 Queen's Bench 530, a case concerning the right of a Chief Constable to "vet" a jury. In both cases a more restricted view was taken of the ratio of Amand's case, the test being said to be whether the order sought to be reviewed was itself criminal in the sense that it was one which could lead to a trial or punishment.
Whatever my personal view of the ratio of Amand's case and however surprised I may be at the view taken by this court in the later cases, I consider myself to be bound to apply the law as stated in those cases. Whilst differing views have been expressed as to how courts should act when confronted with potentially inconsistent binding precedents—see the speeches of Lord Simon of Glaisdale and Lord Cross of Chelsea in Miliagos v. George Frank (Textiles) Ltd. (1976) Appeal Cases at pages 479 and 496, I consider that the better view is that expressed by Lord Denning, M.R. in Schorsch Meier v. Hennin (1975) Queen's Bench 416 at page 502 that:
"This court is bound to follow its own decisions—including majority decisions—except in closely defined circumstances. One of these is where a previous decision of this court, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords: note the word 'subsequent.'"
Where, however, a prior decision of the House of Lords has been considered by the court, its decision must be accepted as being consistent with the earlier House of Lords decision even if the basis of this consistency may not have been fully or satisfactorily explained. This approach is necessary in the interests of certainty.
Accordingly I consider that this court has jurisdiction. The duty of the Director of Public Prosecutions, which is the matter directly affected by the declaration sought by the applicant, is not a matter which can lead to his trial or punishment and so is not a criminal cause or matter.
I now turn to the substance of the matter. Mr. Collins for the applicant submits to this court, as he submitted below, that the Director would be in breach of his duty if, without the leave of the Crown Court, or, before committal, of the magistrates' court, he took the exhibits out of the jurisdiction and surrendered them to the custody of the Irish Court of Appeal.
There is a long line of authority which is still developing and which is concerned with the right of the police to seize and detain chattels which are or may be material evidence in criminal proceedings. For present purposes it is sufficient to advert to Dillon v. O'Brien and Davis (1887) 20 Common...
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