R v The Macclesfield Magistrates and Another
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KENNEDY,MR JUSTICE FORBES |
| Judgment Date | 07 February 1995 |
| Judgment citation (vLex) | [1995] EWHC J0207-1 |
| Date | 07 February 1995 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 737/95 |
[1995] EWHC J0207-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Divisional Court)
Before: Lord Justice Kennedy and Mr Justice Forbes
CO 737/95
MR M SUPPERSTONE QC and MISS C FIELDEN (instructed by Messrs Bloom-Camillin, London EC1N 2HL) appeared on behalf of the Applicant.
MR A LONG (instructed by the Crown Prosecution Service, Wigan Branch, Wigan WN1 3AP) appeared on behalf of the Respondents.
MR A GEE QC and MR P TAYLOR (instructed by Wains, Cheshire SK10 1HW) appeared as an Interested Party (Mr Shingler).
Wednesday, 7th February 1996.
I will ask Forbes J to give the first judgment.
MR JUSTICE FORBESOn Saturday, 11th June 1994 Matthew John Cookson (the son of the Applicant in these two related applications for judicial review) was tragically killed in a road traffic accident which occurred in Leek Road, Bosely, at the junction with Bullgate Lane, Cheshire. The accident resulted from a manoeuvre carried out by Mr William Shingler, when driving his Land Rover, in turning right into Bullgate Lane from Leek Road. In carrying out that manoeuvre Mr Shingler drove into the path of a motorcycle being ridden in the opposite direction in Leek Road by Matthew Cookson, who was unable to avoid the fatal collision.
These proceedings are concerned with two related applications for judicial review. In the primary application the Applicant challenges the legality of a decision by Mr John Koziarski, a Clerk to Macclesfield Magistrates' Court, of 2nd March 1995 in refusing to issue a summons against Mr Shingler for the offence of causing the death of Matthew Cookson by dangerous driving contrary to section 1 of the Road Traffic Act 1988. In the event, Mr Shingler was charged with the offence of driving without due care and attention contrary to section 3 of the 1988 Act. On 24th March 1995, in the Macclesfield Magistrates' Court, Mr Shingler pleaded guilty to that offence and was fined £200. His licence was endorsed with six penalty points and he was ordered to pay £50 costs. In the second of these two related applications the Applicant seeks to challenge the Magistrates' acceptance of that plea of guilty and to quash the resulting conviction and sentence.
It is necessary to fill in some more of the factual background to this matter as follows. Anthony Roy Taylor is a solicitor of the Supreme Court and the Chief Crown Prosecutor for the Crown Prosecution Service area, known as CPS North West. According to his affidavit, dated 11th January 1996, the Cheshire police carried out a full investigation into the circumstances of the accident. On 31st August 1984 the Cheshire police provided a full file of evidence and accompanying reports to the Crown Prosecution Service, sought advice as to the appropriate charge and recommended that the evidence was sufficient to justify prosecution of Mr Shingler for causing death by dangerous driving.
The matter was carefully considered by the Crown Prosecution Service in accordance with appropriate criteria. The Crown Prosecution Service came to the conclusion that the appropriate charge in all the circumstances was one of driving without due care and attention contrary to section 3 of the 1988 Act. That decision was duly communicated to the police by letter dated 21st October 1994.
On 11th November 1994 an information was laid against Mr Shingler alleging that he drove without due care and attention contrary to section 3 of the Road Traffic Act 1988 and a summons was duly issued.
On 3rd February 1995 Mr Shingler appeared before the Macclesfield Magistrates' Court to answer that charge. The proceedings were adjourned until 17th February 1995 at the request of the prosecution.
By letter dated 14th February 1995 the Appellant's solicitors informed the Crown Prosecution Service that, having considered the evidence, they were of the opinion that Mr Shingler's driving, was "capable of being classed as being dangerous and in all the circumstances should have been charged as such." Consequently, on 15th February 1995 Mr Taylor telephoned Mr Oddy, the solicitor concerned, and confirmed that in his opinion the appropriate proceedings were for driving without due care and attention. By letter dated 16th February 1995 Mr Taylor confirmed that view in writing and also added that if the parents did start a private prosecution the Crown Prosecution Service would not take it over. It is necessary to quote the contents of that letter in full. After the formal parts the letter reads as follows:
"Dear Sir
…..
I refer to our telephone conversation of yesterday. I now write to confirm:-
1. That, after careful consideration, I consider that due care is the appropriate offence and that it is the intention of the Crown "Prosecution Service to proceed with that offence tomorrow when the matter is next in court.
2. If your clients wish to bring a private prosecution for death by dangerous driving, you must attend tomorrow before the careless driving is dealt with and issue your own proceedings for death by dangerous driving.
The CPS will otherwise proceed with the due care and you will, of course, have no locusstandi in the question of any application for an adjournment of those proceedings.
3. I feel that you should tell your clients most carefully that if they wish to pursue this matter, they will do so at their own expense as the case will not be taken over by the Crown Prosecution Service."
On 17th February 1995 an application was made by the solicitors for the Applicant to issue a summons against Mr Shingler for the offence of causing death by dangerous driving contrary to section 1 of the 1988 Act. That application was adjourned, as was the summons for driving without due care and attention.
On 2nd March 1995 the adjourned hearing took place of the application by the solicitors for the issue of the summons alleging causing death by dangerous driving. The adjourned application took place before Mr Koziarski (a Clerk to the Magistrates) who dismissed the application. It is that decision which is challenged in the primary application.
On 9th March 1995 Form 86A for judicial review of that decision of Mr Koziarski was duly filed.
On 10th March 1995 the Macclesfield Magistrates' Court adjourned the hearing of the summons for due care and attention until 24th March 1995.
On 22nd March there was a hearing of an oral application for leave to move for judicial review which was refused by the single judge.
On 25th March 1995 Mr Shingler pleaded guilty to the offence of driving without due care and attention and was dealt with in the manner which I have already described. It is that conviction to which the secondary application refers.
On 3rd July 1995 there was a renewed application for leave in respect of the primary application which came before this court and leave was granted.
On behalf of the Applicant Mr Supperstone QC accepts that the relevant principles to be applied to the circumstances, such as those which faced Mr Koziarski on 2nd March 1995, are to be found in the decision of this court in R v Tower Bridge Metropolitan Stipendiary Magistrate, ex parte Chaudhry [1994] QB 340 and, in particular, in the judgment of Kennedy LJ, at page 347, where he stated as follows:
"Underlying all of Mr Scrivener's submissions is, of course, the individual's right to prosecute, and before us no one has questioned it. In Gouriet v Union of Post Office Workers [1978] AC 435, 477 Lord Wilberforce paid tribute to it, saying:
'…..'
It is also allowed for by the wording of section 6(1) of the Prosecution of Offences Act 1985, but I see no conflict between the existence of that right and of the discretion of a magistrate to decide whether or not to issue a summons. After all, as Mr Scrivener recognises, an individual prosecutor does not have the unfettered right to "pursue his prosecution to trial. By virtue of section 6(2) of the Act of 1985 the Director of Public Prosecutions may, at any stage, take over in order to abort (see Raymond v Attorney-General (1982) 75 Cr.App.R 34), and he may even bring the magistrates' court proceedings to an end by notice pursuant to section 23 of the Act of 1985. So, as it seems to me, in any given case, a private prosecutor will have two hurdles to surmount. He will have to persuade a magistrate to issue a summons, and thereafter, if he wishes to retain control of the case, he may have to persuade the Director of Public Prosecutions not to take it over. But in reality the criteria applied by the magistrate and the Director will be different. The magistrate should have regard to all of the relevant circumstances of which he is aware (see Klahn's case [1979] 1 WLR 933), such as whether the incident giving rise to the information which he is considering has already been investigated by a responsible prosecuting authority which is pursuing what it considers to be the appropriate charges against the same proposed defendant. If so, as Mr Hunt pointed out, the magistrate may have in mind the provisions of the Code for Crown Prosecutors which requires the Crown Prosecution Service generally to charge the most serious offence revealed by the evidence, but to have regard to the public interest, the interests of the victim, and the prospects on the available evidence of securing a conviction (which may not be very high where recklessness is alleged). If a summons for a more serious charge is issued on the application of a private prosecutor, the discretion of the Crown prosecutor...
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