R v Reading Justices, ex parte Berkshire County Council

JurisdictionEngland & Wales
Judgment Date03 May 1995
Judgment citation (vLex)[1995] EWHC J0503-2
Docket NumberCO 426/95
CourtQueen's Bench Division (Administrative Court)
Date03 May 1995
Regina
and
Reading Justices
Ex Parte the Berkshire County Council

[1995] EWHC J0503-2

Before: Lord Justice Simon Brown and Mr Justice Curtis

CO 426/95

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(DIVISIONAL COURT)

MR B McGUIRE (Instructed by the County Solicitor of Berkshire County Council, Reading, Berkshire RG2 9DU) appeared on behalf of the Applicants.

THE RESPONDENTS did not appear and was unrepresented.

THE INTERESTED PARTY (Instructed by the Crown Prosecution Service, Coventry Branch Office, Coventry CV1 2TE) did not appear and was unrepresented.

MR N LOBBENBERG (Instructed by Russell Jones & Walker, London WC1X 8DH) appeared on behalf of the defendant, Cooke.

1

Tuesday, 3rd May 1995.

LORD JUSTICE SIMON BROWN
2

I will ask Curtis J to give the first judgment.

MR JUSTICE CURTIS
3

MR JUSTICE CURTIS: This is an application for judicial review by way of certiorari and consequential relief to quash a decision, dated 23rd January 1995, by Reading Justices to issue a witness summons directed to the Director of Social Services of Berkshire County Council.

4

The summons was granted on the application of two police officers, Shane Peter John Cooke and Wayne Dilwyn Thomas, who were due to face trial on two charges of common assault on one Richard James Bowden. The date of the alleged offences was 26th June 1994. At that time the alleged victim, a 15 year-old child, was a resident of York House Children's Home, and in the Applicants' care under a Care Order.

5

It is alleged by the Crown Prosecution Service that these two defendants went to an office in York House to make certain inquiries. As the two police officers left the office it is suggested that Bowden called one of them a "Cunt"; that Police Constable Cooke then grabbed the victim and took him into a side room and remonstrated with the victim whilst Police Constable Thomas held the door of the room to enable Constable Cooke to carry out this assault without intervention by the nearby social workers and detection. There seems little doubt that Bowden did, in fact, have some marks of injury on him after this incident.

6

The summons, dated 26th January 1995, was both to give evidence and for the Director to produce:

7

(1) the Running Log of York House Children's Home;

8

(2) the Accident Book of the same home; and

9

(3) the Social Services files regarding the victim.

10

At the hearing before the Justices the procedure agreed upon was that the defence should make their application under section 97 of the Magistrates' Courts Act, leaving over any question of the information being withheld on the grounds of public interest immunity. As I have said, after the hearing, in open court, the Justices granted the application. They gave reasons after their retirement, which were later repeated in writing. They read as follows:

11

"We feel that we should not exclude evidence without an opportunity of testing its relevance and importance and that there may be such material contained in these documents."

12

Whether the summons should be granted is to be determined by looking at section 97 of the Magistrates' Courts Act 1980, which reads, at subsection (1), as follows:

13

"Where a justice of the peace ….. is satisfied that any person ….. is likely to be able to give material evidence, or produce any document or thing likely to be material evidence, ….. the justice shall issue a summons directed to that person requiring him to attend before the court ….."

14

It must be observed, therefore, that (i) the exercise is to be conducted by construing the provisions of the section; (ii) that it is a criminal law matter, and (iii) that the section is governing the appropriate procedure where it is proper to compel third parties to produce evidence that falls within the section.

15

For my part, I would say that it is clear that the issuing Justice must not issue the summons unless he considers, first, that he is satisfied that it is proper to issue the summons; secondly, that the summoned party is likely to be able to give evidence or produce a document; thirdly, which evidence or document is material evidence in the case, that is to say both relevant and admissible.

16

The section has received judicial consideration in a number of cases. I turn, first of all, to the case of R v Cheltenham Justices, ex parte Secretary of State for Trade [1977] 1 WLR 95. In that case a director of a limited company was investigated at a Department of Trade inquiry under the Companies Act. He was later prosecuted for criminal offences. He applied to a Justice and obtained a witness summons requiring one of the Department of Trade's inspectors to give evidence and produced the witnesses' evidence to the inquiry. It was held, in short, that it was not admissible evidence and, therefore, no disclosure should be granted.

17

The Lord Chief Justice of the day, Lord Widgery, at page 99, after discussing the case of Lewis, set out above at that page, distinguishes that case, saying as follows:

18

"The documents with which we are concerned in this case are not in that category [meaning the category in the Lewis case] at all. They are on their face not admissible evidence in the pending proceedings at all. Their purpose and virtue is simply this. If in the proceedings when they take place, that is to say the trial in the Crown Court when it takes place, a witness makes a statement which is contrary to a statement which he has previously made, he may have his attention drawn to that previous statement and be asked to give an explanation of the apparent discrepancy."

19

The Lord Chief Justice went on to deal with Lord Denman's Act.

20

The next case where this section was considered is R v Peterborough Magistrates, ex parte Willis and Amos [1987] 151 JP 785. There, a defendant charged with two offences applied to Justices for witness summonses to be issued against two police officers on the basis that they had been nearby at the time of her arrest and would be able to give material evidence on her behalf. It was held by the court that:

21

"Where justices had to consider, on an application for a witness summons under s97(1) of the Magistrates' Courts Act 1980, whether the potential witness was 'likely to be able to give material evidence'., they had to inquire into the nature of the evidence the witness could give and whether it was material. It was incumbent on an applicant for a witness summons to satisfy the justices, with some material, that the potential witness was likely to be able to give material evidence."

22

On the facts that simply did not happen in the present case.

23

I turn to page 789E of the report to extract what, in my view, are important considerations set out by Kerr LJ. He points out that "The section is mandatory about the requirement that the magistrates must be satisfied that the persons in question are 'likely to be able to give material evidence'" before the justice should issue the summons that he is asked to issue. He then said at letter G:

24

"The importance of complying with the requirements of s.97(1) was referred to in a decision of this court, The Queen v Pollard Mildenhall Justices, ex parte Chief Superintendent Hugh Graham….. That case shows that it is not sufficient to apply for a witness summons on the basis that a defendant wants to find out whether or not the person to whom the summons is to be addressed can give any material evidence. An applicant for a summons must satisfy the bench, with some material, that the person in question is likely to be able to give material evidence."

25

I further find assistance at page 791G from the judgment of Farquharson J (as he then was) where he said:

26

"This court, when reviewing an order made under s.97, looks at the information which was then available to the magistrates at the time the application was made and then, having looked at that information, decides the question of jurisdiction; that is to say, whether that information fulfilled the necessary requirements that are set out in the terms of the subsection. If there was sufficient information to comply with s.97(1), even if in the event it turns out that the witnesses against whom the orders are sought could not give material evidence, nonetheless the magistrates would be justified in issuing the summonses and it would not be appropriate for this court to interfere."

27

In R v Skegness Justices, ex parte Cardy [1985] RTR 49 this matter received more recent attention. There, it will be recollected, the two defendants were motorists charged with excess alcohol offences. They obtained, in one case, a Justice's summons under section 97 and in the other case a Crown Court witness Order for production of documents concerning the Intoximeter devices that were used by the police to detect this class of offence. The applications to set aside the Orders made were granted on the basis that "….. it was impossible to say that any document the subject of the summons was likely to be material evidence at the hearing ….., the motorists had attempted to misuse the witness summons procedures in order to obtain discovery of documents and, therefore, the [Orders] ….. would be quashed".

28

Goff LJ gave the leading judgment in the case and, at page 56L, he said:

29

"It will be observed that, both in a magistrates' court and in the Crown Court, the court has to be satisfied that the person in question is likely to be able to give material evidence, or to produce any document or thing likely to be material evidence at the relevant hearing, which ….."

30

He itemised the particulars in that case to which the case related. He went on, at letter B, to say:

31

...

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