R v Telford Justices, ex parte Badham

JurisdictionEngland & Wales
Judgment Date21 December 1991
Date21 December 1991
CourtQueen's Bench Division
[Queen's Bench Division] REGINA v. TELFORD JUSTICES, Ex parte BADHAN 1990 Nov. 27, 28, 29; Dec. 21 Watkins and Mann L.JJ. and Otton J.

Justices - Committal proceedings - Delay - Committal proceedings over 15 years after commission of alleged offence - Neither prosecution nor defendant to blame for delay - Whether lapse of time prejudicial - Whether committal proceedings amounting to abuse of process - Whether justices having jurisdiction to refuse to proceed as examining justices

In October 1988 the defendant was charged with having raped an 11-year-old girl on a day unknown some 15 or 16 years earlier, the complaint having been first made in September 1988. In May 1989 the defendant appeared before the justices at the committal proceedings and made an application that they should not proceed as examining justices to inquire into the allegation on the grounds that to do so, after such a lapse of time, would be an abuse of the process of the court. The justices refused the application on the basis that the delay in the making of the complaint was not unjustifiable but granted the defendant an adjournment in order that he could apply for judicial review by way of an order prohibiting the justices from hearing the committal proceedings on the ground that the delay was unconscionable, inordinate and oppressive and he could not have a fair trial for reasons which were no fault of his own.

On the application: —

Held, granting the application, that examining justices had an inherent jurisdiction to refuse to inquire into an offence on the ground that to do so would be an abuse of process; that it was an abuse of process for a prosecution to be brought so long after the commission of the alleged offence that it was no longer possible for the accused to have a fair trial, irrespective of whether the prosecutor was to blame for the elapse of time, and the onus was on the accused to show on the balance of probabilities that a fair trial was no longer possible; that, in all the circumstances, the court would infer that the defendant could not be fairly tried; and that, accordingly, the justices would be prohibited from further hearing the committal proceedings (post, pp. 875C–F, 876G–H, 877D–E, F).

Reg. v. Canterbury and St. Augustine Justices, Ex parte Klisiak [1982] Q.B. 398, D.C. and Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164, D.C. applied.

Reg. v. Humphrys [1977] A.C. 1, H.L.(E.) considered.

Atkinson v. United States of America Government [1971] A.C. 197, H.L.(E.) distinguished.

Per curiam. Justices have no power to refuse to embark on an inquiry because they think that a prosecution should not have been brought because it is mean-minded, petty or animated by personal hostility (post, p. 875G).

The following cases are referred to in the judgment:

Atkinson v. United States of America Government [1971] A.C. 197; [1969] 3 W.L.R. 1074; [1969] 3 All E.R. 1317, H.L.(E.)

Bell v. Director of Public Prosecutions [1985] A.C. 937; [1985] 3 W.L.R. 73; [1985] 2 All E.R. 585, P.C.

Connelly v. Director of Public Prosecutions [1964] A.C. 1254; [1964] 2 W.L.R. 1145; [1964] 2 All E.R. 401, H.L.(E.)

Government of Australia v. Harrod [1975] 1 W.L.R. 745; [1975] 2 All E.R. 1, H.L.(E.)

Mills v. Cooper [1967] 2 Q.B. 459; [1967] 2 W.L.R. 1343; [1967] 2 All E.R. 100, D.C.

Reg. v. Bow Street Stipendiary Magistrates, Ex parte Director of Public Prosecutions (1989) 91 Cr.App.R. 283, D.C.

Reg. v. Brentford Justices, Ex parte Wong [1981] Q.B. 445; [1981] 2 W.L.R. 203; [1981] 1 All E.R. 884, D.C.

Reg. v. Canterbury and St. Augustine Justices, Ex parte Klisiak [1982] Q.B. 398; [1981] 3 W.L.R. 60; [1981] 2 All E.R. 129, D.C.

Reg. v. Canterbury and St. Augustine Justices, Ex parte Turner (1983) 147 J.P. 193, D.C.

Reg. v. Colwyn Justices, Ex parte Director of Public Prosecutions (unreported), 7 March 1988, D.C.

Reg. v. Derby Crown Court, Ex parte Brooks (1984) 80 Cr.App.R. 164, D.C.

Reg. v. Fairford Justices, Ex parte Brewster [1976] Q.B. 600; [1975] 3 W.L.R. 59; [1975] 2 All E.R. 757, D.C.

Reg. v. Grays Justices, Ex parte Graham [1982] Q.B. 1239; [1982] 3 W.L.R. 596; [1982] 3 All E.R. 653, D.C.

Reg. v. Horsham Justices, Ex parte Reeves (Note) (1980) 75 Cr.App.R. 236, D.C.

Reg. v. Humphrys [1977] A.C. 1; [1976] 2 W.L.R. 857; [1976] 2 All E.R. 497, H.L.(E.)

Reg. v. Manchester City Stipendiary Magistrate, Ex parte Snelson [1977] 1 W.L.R. 911; [1978] 2 All E.R. 62, D.C.

Reg. v. Oxford City Justices, Ex parte Smith (1982) 75 Cr.App.R. 200, D.C.

Reg. v. Sunderland Magistrates' Court, Ex parte Z [1989] Crim.L.R. 56, D.C.

Reg. v. West London Stipendiary Magistrate, Ex parte Anderson (1984) 80 Cr.App.R. 143, D.C.

Young v. Bristol Aeroplane Co. Ltd. [1944] K.B. 718, [1944] 2 All E.R. 293, C.A.

The following additional cases were cited in argument:

Card v. Salmon [1953] 1 Q.B. 392; [1953] 2 W.L.R. 301; [1953] 1 All E.R. 324, D.C.

Reg. v. Carden (1879) 5 Q.B.D. 1, D.C.

Reg. v. Governor of Pentonville Prison, Ex parte Sinclair [1990] 2 Q.B. 112; [1990] 2 W.L.R. 1248; [1990] 2 All E.R. 789, D.C.

APPLICATION for judicial review.

On an application for judicial review made pursuant to leave granted by French J. on 9 October 1989, the applicant, Piara Lal Badhan, sought an order prohibiting any justices sitting at Telford Magistrates' Court, Telford, Shropshire, from inquiring further into an offence under section 1(1) of the Sexual Offences (Amendment) Act 1976 alleged to have been committed by the applicant on a day unknown between 15 February 1973 and 14 February 1974 and that all proceedings on the charge be stayed until after the hearing of the application or further order. The grounds upon which the relief was sought were that the delay was unconscionable, inordinate and oppressive and that the applicant could not have a fair trial.

On 29 November 1990 the Divisional Court allowed the application but reserved its reasons.

The facts are stated in the judgment.

Brian Escott Cox Q.C. and Balbir Singh for the applicant.

Andrew Collins Q.C. and Frank Chapman for the prosecution.

The justices did not appear and were not represented.

Cur. adv. vult.

21 December. MANN L.J. read the following judgment of the court. There is before the court an application for judicial review. Leave to move was given by French J. on October 9 1989. The applicant is Piara Lal Badhan and the respondents are the justices for the petty sessional division of Telford in the County of Shropshire. The decision impugned is a decision of the justices sitting as a magistrates' court at Telford Square, Malinsgate, Telford on 12 May 1989. The decision was one whereby the justices refused an application by counsel for the applicant that they should not proceed as examining justices to inquire into an allegation that the applicant raped Miss X on a day unknown between 15 February 1973 and 14 February 1974. The basis of the application was that for the justices to inquire into the allegations would be an abuse of the process of their court. The relief now sought is an order prohibiting the justices from further proceeding with the committal proceedings which are now adjourned pending our decision upon this application.

The justices were not represented before us but we were provided with the affidavit of Gillian Young sworn on 10 January 1990. Gillian Young was chairman of the Telford Magistrates' Court on 12 May 1989. The Crown Prosecution Service (“C.P.S.”) which had been served with notice of the proceedings, were represented before us.

Mr. Andrew Collins, for the C.P.S., argued for the proposition that justices, when sitting to inquire into an offence as examining justices, have no power to refuse to undertake the inquiry on the ground that it would be an abuse of process. Mr. Collins told us that this was the first occasion on which the proposition had been argued in this court, although there were cases in which the existence of the power has been either assumed or conceded. Mr. Collins said that those assumptions and concessions were inconsistent with the decision of the House of Lords in Atkinson v. United States of America Government [1971] A.C. 197.

Whatever may be the power of examining justices, there can be no doubt that this court, in the exercise of its supervisory jurisdiction, has power to prohibit the commencement of committal proceedings. Mr. Collins did not contend to the contrary. The existence of the power was recognised by Lord Widgery C.J. in Reg. v. Manchester City Stipendiary Magistrate, Ex parte Snelson [1977] 1 W.L.R. 911, 913 and by May L.J. and Stephen Brown J. in Reg. v. Grays Justices, Ex parte Graham [1982] Q.B. 1239, 1247. In our view this power cannot be doubted. Equally, it is not open to doubt the power of this court to prohibit the commencement or continuance of the summary trial of an information on the ground of abuse of process. Here is another aspect of the supervisory jurisdiction of this court, and examples of its exercise are: Reg. v. Fairford Justices, Ex parte Brewster [1976] Q.B. 600; Reg. v. Horsham Justices, Ex parte Reeves (Note) (1980) 75 Cr.App.R. 236 and Reg. v. West London Stipendiary Magistrate, Ex parte Anderson (1984) 80 Cr.App.R. 143.

The question of the powers of examining justices was fully debated between Mr. Collins and Mr. Escott Cox who appeared for the applicant.

That provides us with a suitable opportunity to set out the considered view of this court on the question of whether justices when sitting to inquire into an offence as examining justices have power to refuse to undertake the inquiry on the ground that it would be an abuse of process.

In modern times the law of abuse of process can be said to be derived from the speeches in Connelly v. Director of Public Prosecutions [1964] A.C. 1254. Lord Morris of Borth-y-Gest said, at p. 1301:

“There can be no doubt that a court which is endowed with a particular jurisdiction has powers which are necessary to enable it to act effectively...

To continue reading

Request your trial
107 cases
  • DPP v Byrne
    • Ireland
    • Supreme Court
    • 2 Marzo 1994
    ...(Unreported, High Court, Barr J, 24 July, 1989, ex tempore) overruled; dictum of Mann L.J. in Reg. v. Telford JJ., ex p. BadhanELR [1991] 2 Q.B. 78 followed. Per Blayney J, O'Flaherty J. concurring: That where excessive delay had been incurred in the prosecution of an offence, the court mig......
  • D. O'R v DPP
    • Ireland
    • High Court
    • 27 Febrero 1997
    ...[1994] 1 I.R. 374 and Z. v. Director of Public ProsecutionsIR [1994] 2 I.R. 476 applied; R. v. Telford J.J. ex parte BadhamELR [1991] 2 Q.B. 78 followed. 5. That the right of an accused to a fair trial is one of the most fundamental rights under the Constitution. Whilst a court must give du......
  • R v Commissioners of Inland Revenue, ex parte Mead and Cook
    • United Kingdom
    • Queen's Bench Division
    • 20 Marzo 1992
    ...QB 815; (1987) 3 BCC 10 R v Race Relations Board, ex parte Selverajan WLR[1975] 1 WLR 1686 R v Telford Justices, ex parte Badhan UNK[1991] 2 All ER 854 This was an application for judicial review by the two applicants seeking to quash a decision by the Board of Inland Revenue to prosecute t......
  • Attorney General's Reference (No. 1 of 1990)
    • United Kingdom
    • Court of Appeal (Criminal Division)
    • 13 Abril 1992
    ... ... 1254 , H.L.(E.); Reg. v. Derby Crown Court, Ex parte Brooks ( 1984 ) 80 Cr.App.R. 164 , D.C. and Reg. v. Telford ... 283 , D.C ... Reg. v. Brentford Justices, Ex parte Wong ( 1980 ) 73 Cr.App.R. 67 , D.C ... Reg. v. Derby ... ...
  • Request a trial to view additional results
1 books & journal articles
  • Abuse of Process: Time for Change?
    • United Kingdom
    • Dundee Student Law Review No. II, January 2015
    • 1 Enero 2015
    ...for an abuse of process, but do not make reference to the relevant grounds for such an application. 2R v Telford Justices, ex p Badhan [1991] 2 QB 78 (QBD). 3[2014] EWCA Crim 1971, [2015] 1 Cr App R 8. Dundee Student Law Review, Vol. II, No. 2 of the European Convention on Human Rights (ECH......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT