R v The Clerk to the Bradford Justices and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BUXTON,MR JUSTICE COLLINS |
| Judgment Date | 14 January 1999 |
| Judgment citation (vLex) | [1999] EWHC J0114-17 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/2741/98 |
| Date | 14 January 1999 |
[1999] EWHC J0114-17
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(DIVISIONAL COURT)
Royal Courts of Justice
Strand
London WC2
Lord Justice Buxton
and
Mr Justice Collins
CO/2741/98
MR S BASSRA (instructed by Bassra Solicitors, Bradford BD1 3BN) appeared on behalf of the Applicants.
MR T SPENCER (instructed by the Crown Prosecution Service, Yorkshire Area, Bradford Branch, Bradford BD5 0QH) appeared on behalf of the Respondents.
Thursday, 14th January 1999.
I will ask Collins J to give the first judgment.
There is before the court an application for judicial review of a decision of the Clerk to the Bradford Magistrates given on 10th July 1998 to issue summonses against the Applicants, alleging, in the case of both Applicants, conspiracy to supply Class A drugs; in the case of the Applicant Sykes, possession of a quantity of heroin with intent to supply; and, in the case of the Applicant Shoesmith, theft of a driving licence. It is said that the issue of the summonses was an abuse of process because they replicated charges which the Justices had dismissed on the preceding day, 9th July.
The background to this application is as follows. On 18th March 1998 Mr Sykes was arrested after police had searched premises in Bradford and found a quantity of heroin. This search and arrest followed an operation involving surveillance of the defendants and others, and of the premises. The quantity in question was some 102 grammes.
On 20th March Mr Sykes was charged with a conspiracy between 1st January 1996 and 19th March 1998 to supply Class A drugs. On the same day he appeared before the Bradford Magistrates' Court and was remanded in custody until 27th March. Following a second appearance on 27th March, he was remanded in custody until 24th April and then again until 22nd May.
In the meantime, on 18th May, Mr Shoesmith (who is, in fact, Mr Sykes' brother) was arrested. On 20th May he appeared before the Bradford Magistrates' Court charged with conspiracy with his brother Sykes to supply heroin. He was granted bail, but was remanded in custody the next day following an appeal by the prosecution,. The matter was adjourned from 22nd May until 28th May because the prosecution had no papers. The custody time limit in respect of Mr Sykes was due to expire on the 29th, and on the 28th there were still no papers available to the defence or, it seems, to the Crown Prosecution Service. The court refused to extend the custody time limits and, as a result, the defendant Mr Sykes was granted bail and shortly thereafter Mr Shoesmith also was granted bail.
The next hearing was on 11th June. Still no papers had been produced and there was an adjournment to 9th July. On that day, following a conference with the Crown Prosecution Service, the view had been formed that there was insufficient material to produce a prima facie case before the Justices. Counsel was, therefore, instructed to attend at the court, and did so, to apply for an adjournment. The Magistrates refused to permit the adjournment and because there was no evidence available the defendants (the two Applicants) were discharged. In those circumstances, the informations were laid the next day (10th July) and summonses were issued.
The position now is that the evidence is available from which a prima facie case can, the Crown submits, be established. There is before us an affidavit from the Crown Prosecutor, a Mr Winship, who was in charge of the case. He explains in that affidavit what evidence is now available. Suffice it to say that Mr Bassra, who has appeared on behalf of the Applicants, accepts that there is a prima facie case against Mr Sykes, but submits that as against Mr Shoesmith the position is less clear. That may or may not be so, but that will be a matter for the Justices if committal proceedings are pursued. Suffice it to say that, for my part, I am satisfied that the information contained in Mr Winship's affidavit discloses enough to show an apparent prima facie case against Mr Shoesmith and a strong prima facie case against Mr Sykes.
The discharge of a defendant on committal proceedings does not operate as a bar to any subsequent prosecution for the same offence. It is, therefore, open to the prosecution to issue fresh proceedings following such a discharge: see R v Manchester Stipendiary Magistrate, ex parte Snelson [1977] 1 WLR 911; and R v Grays Justices, ex parte Graham [1982] 3 All ER 653. Both of these cases had similarities to the case before us, inasmuch as in both the prosecution had not been ready to proceed, had asked for an adjournment, which was refused, and had issued fresh proceedings for the same offences following the discharge of the first summonses.
The court made clear that there was no objection to this in principle, but that justices (and, indeed, this court if application was made to it) should be careful to ensure that the prosecution was not acting vexatiously. If, for example, it had been done for an improper purpose, perhaps to avoid custody time limits which might otherwise apply or, as in R v Horsham Justices, ex parte Reeves (1981) Crim. LR 566, where the first committal proceedings were used as what the court described as "a dry run" to see whether a case could be made out, it would in those circumstances be an abuse of the process to try again when the first proceedings failed.
Here it cannot be suggested, and Mr Bassra does not submit, that it would be vexatious to proceed again on the information that is now available. Essentially, his complaint boils down to the fact that the informations were laid the very next day. It is said that it was an affront to the Magistrates to do that because nothing could have changed between 9th and 10th July.
In his affidavit, in paragraph 20, Mr Winship explains why it happened. He states:
"I was on leave on 9th July but became aware of what had happened at Court on my return to work on the following day. On 10th July I spoke to officers concerned in the investigation of the case against the Applicants who were naturally disappointed at what had happened and who assured me that they would still be in a position to serve a full committal file on the CPS two weeks prior to 20th August. In the light of this assurance, I instructed the police to lay Informations before the Clerk to the Justices as soon as possible. It was on my advice that, in respect of the Applicant Sykes, two Informations were laid, the first alleging the same offence of conspiracy to supply heroin which had been discharged the previous day, but also a second alleging that he on 18th March 1998 had been in possession of the quantity of 102.75 grammes of heroin found at his premises on 18th March with intent to supply. As far as the Applicant Shoesmith is concerned, on my Instructions, an Information was laid against him in respect of the same conspiracy on which he had been discharged the previous day and for the offence of theft of a driving licence which had also been discharged the previous day. I specifically requested that the Informations be laid as soon as possible as I wished to give the Applicants and their legal representatives as much warning as possible of the fresh proceedings and the return date on the Summonses which were issued was 20th August, the same date which on the previous day Counsel for the Prosecution had informed the Court the Prosecution would be ready to commit the Applicants to the Crown Court."
He then goes on to explain that he decided to issue the fresh proceedings because he was satisfied that the matter would be ready by 20th August, that there was sufficient evidence to establish what were extremely serious offences in relation to the supply of the Class A drugs and that he knew that it would be open to the Applicants to submit before the Justices on 20th August that the proceedings ought to be stayed as an abuse of process of the court.
Following the issue of the summonses, the solicitors for the Applicants on 16th July asked the Clerk to the Justices to bring forward the hearing date to allow for an abuse of process argument, but that was refused and so the date remained as 20th August. Following that refusal, on 22nd July these proceedings before this court were lodged.
The case has given rise to an important question, namely whether there is any duty on a Clerk or a Magistrate who is asked to issue a summons to make inquiries to satisfy himself that the summons would not be vexatious. Mr Bassra submits that a prosecutor should inform the court whether what he is doing is an attempt to reissue proceedings; that, in any event, there should be a requirement that such information is given and that, if it is not, the Magistrate or Clerk should ask for it. Otherwise, he submits, the Magistrate or Clerk cannot properly perform this judicial functions which are involved in deciding whether or not a summons should be issued. Mr Bassra submits that if the Clerk had known that similar charges had been dismissed the day before, he should not have permitted the summonses to issue.
The function of a Magistrate or a Clerk in determining whether a summons should be issued is a judicial function: see R v Manchester Stipendiary Magistrate, ex parte Hill [1983] 1 AC 328. This court has jurisdiction to control by judicial review the exercise of that function, but that jurisdiction will be used only in the most exceptional circumstances and only if it is clearly shown that the issue of a summons was an abuse: see R...
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