Re Harrington (pet. all.); R v Dorking Justices, ex parte Harrington (pet. all.)
| Jurisdiction | England & Wales |
| Judge | Lord Fraser of Tullybelton,Lord Elwyn-Jones,Lord Scarman,Lord Roskill,Lord Bridge of Harwich |
| Judgment Date | 14 June 1984 |
| Judgment citation (vLex) | [1984] UKHL J0614-2 |
| Date | 14 June 1984 |
| Court | House of Lords |
[1984] UKHL J0614-2
Lord Fraser of Tullybelton
Lord Elwyn-Jones
Lord Scarman
Lord Roskill
Lord Bridge of Harwich
House of Lords
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Roskill, and I agree with it. For the reasons given by him I would allow the appeal and answer the certified question (as amended) in the affirmative.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Roskill and for the reasons he has given I would allow the appeal and answer the amended question in the affirmative.
My Lords,
Having read in draft the speech to be delivered by my noble and learned friend, Lord Roskill, I would for the reasons he gives allow the appeal and answer the amended question in the affirmative.
My Lords,
This appeal by the prosecution arises out of the refusal of the Divisional Court (Robert Goff L.J. and Glidewell J.) on 20 May 1983 [1983] Q.B. 1076 to make an order for judicial review of a decision by the Dorking justices given on 13 August 1982. By that decision those justices purported to dismiss two informations against a man named Peter Arnold Roots. It is apparent from the terms of the leading judgment given by Robert Goff L.J. that the Divisional Court reached their conclusion with marked reluctance and only because they felt constrained by authority and indeed to some extent by principle to hold that notwithstanding that it was common ground that the justices had acted in what was described as a breach of the rules of natural justice, it was not open to the Divisional Court to grant judicial review of their decision in a case where the result of their action was the acquittal of the defendant. Robert Goff L.J. said at p. 1082:
"We wish to record our disquiet at the anomaly which appears to us to be revealed by the present case in the procedure for reviewing decisions of justices. … It must appear strange to complainants that, when the basis of their case is so serious a matter as a breach of the rules of natural justice, they are bound to adopt a procedure under which, if there has been an acquittal this court has no power to intervene… However, that is, as we see, it the effect of the law as it now stands, which we have been bound to apply in the present case."
The Divisional Court subsequently granted a certificate in the following terms:
"Whether upon the dismissal by justices of an information as a result of a breach of the rules of natural justice, the Queen's Bench Divisional Court has power upon an application by the prosecutor for judicial review to quash the acquittal and remit the matter to the justices for rehearing."
Leave to appeal was refused by the Divisional Court but was later granted by your Lordships' House.
The relevant facts are simple and can be shortly stated. The first of the two informations charged Roots with assaulting a police officer named Lane in the execution of Lane's duty, the alleged assault having taken place at Dorking on 2 July 1982. The second charged Roots with an offence against section 5 of the Public Order Act 1936. There were four other defendants similarly charged but seemingly only the case of Roots was dealt with on the occasion now complained of. Your Lordships were told by counsel that the other four defendants had in due course been convicted and sentenced.
The charges against Roots came on for hearing before the justices on 13 August 1982. There was thus no undue delay between the date of the alleged offences and their hearing. At the present time some five weeks' delay is by no means excessive. Both the prosecution and Roots were legally represented. At the outset of the proceedings counsel for the prosecution sought an adjournment since Lane was then on annual leave. Both Roots's counsel and the court had been previously told that such an application would be made. No objection was offered on Roots's behalf. The justices retired and then decided to adjourn the case against Roots until 24 August 1982. But Roots had already booked his holiday over a period which included that date and naturally did not wish to postpone it. The Divisional Court was informed that the justices had already been apprised of that fact before they retired. Counsel for Roots thereupon asked for another date. The justices refused this request. Counsel very properly pressed his submission on Roots's behalf, pointing out that Roots was entitled to the same treatment as had been accorded to the prosecution in respect of Lane's holiday. Counsel for the prosecution did not oppose this request.
The chairman of the justices apparently then said that the justices were in a difficult position "and for that reason had decided the case should be dismissed." Counsel for the prosecution then asked the justices to reconsider their decision. At no time did he tell the justices that he could not proceed then and there. Indeed he had available another witness to the alleged assault. He pointed out, entirely correctly, that if the justices had refused the adjournment sought, it was their duty to inform the prosecution of that fact and then let the prosecution decide what line the prosecution would take, whether to proceed then and there on the available evidence or to offer no evidence.
The justices again retired and, after apparently seeking advice from a "senior clerk" in another court, returned to court to announce that their decision must stand. It was in these circumstances that the prosecution not surprisingly sought judicial review of the decision.
My Lords, no explanation has been vouchsafed of the reasons for what can only be regarded as this remarkable action by the justices. No doubt they were not obliged to give any explanation or to reveal what advice they had been given if they did not wish to do so. But in the absence of some explanation — none is readily apparent — it is clear that their action was both wrong and unjudicial.
As I have already stated it was conceded below that the rules of natural justice had not been complied with and indeed that phrase is used in the certificate which I have already quoted. It would seem from the judgment of Robert Goff L.J. that in the Divisional Court the case was argued solely on the basis that a failure to comply with the rules of natural justice was the relevant consideration. As will later emerge I am of the opinion that such a failure is not the relevant consideration. It is however, clear and no one has suggested otherwise, that the action of the justices cannot be supported.
The sole question for your Lordships' House now to determine is whether on the facts I have summarised the Divisional Court had power to grant judicial review. It is apparent that if they had felt able to do so they would have granted the relief sought. Counsel for the appellant prosecutor made it plain that if the House were to allow this appeal, the prosecution would not, after the lapse of time since the alleged offences, now seek for the case to be remitted to the Divisional Court for an order of mandamus to be issued to the justices to hear and determine the informations according to law. He said that the matter was brought to this House as one of principle only. No further proceedings against Roots were contemplated.
My Lords, stated briefly, the argument which prevailed below was that the dismissal of the informations amounted to acquittals on both charges, that an acquittal was not open to judicial review since to order the charges to be reheard would be to put Roots in jeopardy a second time and that to do so was contrary both to principle and to the authorities cited in the judgment of Robert Goff L.J. Before your Lordships it was also strongly urged for Roots that the proceedings against him had been validly begun once his pleas of not guilty had been taken, as they were, and that although the justices had subsequently acted improperly it was within their jurisdiction to do that which they did, that acquittals followed and that those acquittals were not now amenable to judicial review.
My Lords, the jurisdiction of a magistrates' court is founded on statute. It is to the relevant statutory provisions that I now turn in order to consider whether or not the justices acted within or without their statutory duty. These provisions do not appear to have been drawn to the attention of the Divisional Court — they are not referred to in the judgment of Robert Goff L.J. They are to be found in the Magistrates' Courts Act 1980. Section 9 appears under the cross-heading "Summary trial of information" and reads:
"(1) On the summary trial of an information, the court shall, if the accused appears, state to him the substance of the...
To continue reading
Request your trial