R v Manchester Stipendiary Magistrate, ex parte Hill; R v Dartford Justices, ex parte Dhesi; R v Edmonton Justices, ex parte Hughes
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Elwyn-Jones,Lord Keith of Kinkel,Lord Roskill,Lord Bridge of Harwich |
| Judgment Date | 22 July 1982 |
| Judgment citation (vLex) | [1982] UKHL J0722-2 |
| Court | House of Lords |
| Date | 22 July 1982 |
[1982] UKHL J0722-2
Lord Diplock
Lord Elwyn-Jones
Lord Keith of Kinkel
Lord Roskill
Lord Bridge of Harwich
House of Lords
My Lords,
I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend, Lord Roskill. I agree with it, and for the reasons he gives I too would dismiss these appeals and answer the certified question as he proposes.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Roskill, with which I agree. For the reasons he gives I too would dismiss these appeals.
My Lords,
I have had the benefit of reading in draft the speech to be delivered by my noble and learned friend, Lord Roskill. I agree with it, and for the reasons he gives I too would dismiss these appeals and answer the certified question as he proposes.
My Lords,
These three appeals, consolidated by order of your Lordships' House, raise a question of great importance to the administration of justice in magistrates' courts in England and Wales. They are brought from decisions dated 22nd June 1981 of the Divisional Court (Griffiths L.J. and Woolf J.) in those three and three other cases— [1981] 1 Q.B. 892. Of that total of six cases, orders of prohibition or of certiorari were refused in the case of the appellants and of one other applicant for judicial review. They were granted in the case of the two other applicants. No further proceedings were sought to be brought in the two last-mentioned cases, or in the case of the applicant whose application, like those of the three appellants, failed. But in the cases of the three appellants the Divisional Court certified the following point of law as one of general public importance.
My Lords, the certificate reads thus:
"What constitutes a laying of an information for the purposes of section 104 of the Magistrates' Courts Act 1952 (section 127 of the Magistrates' Courts Act 1980)?"
The Divisional Court refused leave to appeal but subsequently leave was given by your Lordships' House.
My Lords, one matter should be mentioned at the outset. As the certificate correctly states, your Lordships' House is theoretically concerned with section 104 of the Magistrates' Courts Act 1952 which is now section 127 of the Magistrates' Courts Act 1980—"the 1980 Act". The latter Act took effect in its entirety on the 6th July 1981, and was not therefore the relevant statute in force at the time when the events giving rise to these appeals took place. But since the 1980 Act was a consolidating Act, and since the effect of the decision of your Lordships' House in these appeals is likely to be applied hereafter by reference to the 1980 Act rather than to cases arising under the antecedent legislation, your Lordships may think it more convenient when considering the relevant problems of construction to do so by reference to the 1980 Act and not to the previous legislation.
My Lords, before the decision of the Divisional Court in these three cases, a differently constituted Divisional Court, Donaldson L.J., Forbes and Bingham JJ., had, on the 26th February 1981, decided two cases, Reg. v. Gateshead Justices, ex parte Tesco Stores Ltd. and Reg. v. Birmingham Justices, ex parte D. W. Parkin Construction Ltd. and Others— [1981] 1 Q.B. 470. I shall hereafter for brevity refer to these two cases by reference to the name of the town whose justices were concerned in the former case, that is to say, as "the Gateshead case", though both cases raised the same point of principle. It is necessary to refer to the Gateshead case in some detail in order to understand how the crucial issue in the instant appeals arises. One applicant for judicial review had been charged with an offence against the Food and Drugs Act 1955. The other had been charged with an offence under the Social Security Act 1975. Both alleged offences were summary offences. The relevant time limit for the laying of the information in the former case was six months, and in the latter, twelve months. As the report shows, the relevant information preferred by the prosecuting authority concerned was in the former case posted to and received by, and in the latter case, delivered in writing to and received by the magistrates' court concerned well within the relevant time limit. In the former case, the information was thereafter considered by a senior and duly authorised member of the staff of the clerk to the justices who affixed a facsimile of that clerk's signature upon the resulting summons. In the latter case, a similar procedure was followed and a similarly signed summons issued. In so acting the clerks to the justices concerned, and their respective staffs, were all acting in accordance with a circular issued by the Council of the Society of Justices' Clerks in 1975. At no time did any justice of the peace, or the clerk to either of those justices, personally apply his mind to the informations in question or personally decide whether or not a summons should be issued. In due course, the respondents appeared before their respective local magistrates' courts. Their appearance was in the one case more than six months, and in the other more than twelve months after the dates of the offences respectively charged. Each of the respondents was convicted. Each sought orders of judicial review to quash the convictions on the ground that as the informations had not been personally considered by a justice of the peace or by the clerk to the justices, the informations had not been properly laid within the respective time limits to which I have already referred. I drew attention to the fact that though each of the informations had been properly sent to and received by the magistrates' courts concerned well within the relevant time limits, there had in neither case been an appearance in court before those time limits had expired.
My Lords, the Divisional Court in a reserved judgment delivered by Donaldson L.J. held that since the informations had not been personally considered by a justice of the peace or by the clerk to the justices, after the information had been properly sent to and received by the magistrates' court concerned, no information had been laid before the relevant time limits had expired. Accordingly, orders of certiorari were issued and the convictions quashed.
My Lords, I should mention that until 1970, a clerk to justices had no power to issue summonses. But in that year, following an amendment to section 15 of the Justices of the Peace Act 1949 made by section 5 of the Justices of the Peace Act 1968, the Lord Chancellor made the Justices' Clerks Rules 1970 ( 1970 No. 231 (L12)) which henceforth permitted certain things specified in the Schedule to those Rules which hitherto had required to be done by, to or before a single justice of the peace for an area to be done by, to or before the clerk to the justices for that area. Those things included in paragraph 1 of the Schedule "the laying of an information or the making of a complaint, other than an information or complaint substantiated on oath". and "the issue of any summons, including a witness summons."
My Lords, at the outset of the judgment in the Gateshead case, Donaldson L.J. observed that deficiencies in the laying of an information or the making of a complaint could usually be remedied by the appearance of the defendant (or the respondent) before the court. But he pointed out that this was of no relevance in the two cases then before the Divisional Court where there had been no such appearances before the time limits in question had expired.
Later in his judgment, at pages 477 and 478, the learned Lord Justice said "An information is not 'laid' within the meaning of the Magistrates' Courts Act 1952, and is certainly not 'laid before a justice of the peace' unless it is laid before and considered by either a justice of the peace or the clerk to the justices acting as the justice of the peace pursuant to the Justices' Clerks Rules 1970 and, incidentally no summons can be issued by any other person or without a prior judicial consideration by that person of the information upon which the summons is based."
My Lords, it is well known that the decision in the Gateshead case caused what can only be described as consternation among those responsible for the administration of justice in magistrates' courts for the practice mentioned in the circular to which I have already referred had been widely followed, no doubt in the interests of saving time and of easing the ever-increasing burden of work upon justices of the peace and upon clerks to the justices. But, as the learned Lord Justice said, if that practice were unlawful, expediency was no answer, and he added (p. 479) that the Divisional Court had no doubt that the advice in the circular was misconceived. The Divisional Court certified as a question of law of general public importance the question:
"Whether the Justices' Clerks Rules 1970 authorise anyone other than the clerk to the justices himself to carry out the functions set out in the Schedule to those Rules and whether the laying of information and/or the issue of a summons are judicial acts".
Leave to appeal was refused.
My Lords, no application for leave to appeal was ever made to your Lordships' House in the Gateshead case and there matters rested so far as the supposed power of delegation was concerned. It was suggested in argument before your Lordships' House that this omission by the prosecuting authorities concerned to seek leave to appeal may have been due to the fact that the view was widely taken that the decision so far as it rested on the absence of any right to delegate...
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