The King on the application of Andreas Michli v Westminster Magistrates Court
| Jurisdiction | England & Wales |
| Judge | Lord Justice Bean,Mr Justice Griffiths |
| Judgment Date | 12 March 2024 |
| Neutral Citation | [2024] EWHC 559 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-000179 |
and
[2024] EWHC 559 (Admin)
Lord Justice Bean
Mr Justice Griffiths
Case No: AC-2023-LON-000179
previously CO/10/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Josh Normanton (instructed by Nicholls & Nicholls) for the Claimant
Paul Jarvis (instructed by Crown Prosecution Service) for the Interested Party
The Defendant did not appear and was not represented
Hearing date: 7 March 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 12 March 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Lord Justice Bean and
This is a claim for judicial review of a refusal by District Judge Michael Snow in the Westminster Magistrates Court to state a case pursuant to section 111 of the Magistrates Court Act 1980.
However, the parties have agreed that this court should address the substantive question which the proposed appeal by case stated is intended to address. That question is whether or not the claimant's conviction in the Magistrates Court should be set aside, on the grounds that the prosecution was statute-barred. Addressing the substantive issues in the case, and not merely the refusal to state a case, is in accordance with the principles considered by the Divisional Court in Sunworld Ltd v Hammersmith and Fulham London Borough Council [2000] 1 WLR 2102.
Relevant facts and procedural history
On 14 February 2021 the claimant hosted a gathering at his home in London of more than 15 people, contrary to the coronavirus lockdown regulations then in force: specifically, regulation 10(1)(a) and (2) and paragraph 3(1) of Schedule 3A to the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020. Police attended the claimant's home at 1 am on that date and, based upon what they saw, issued him with a Fixed Penalty Notice on the same day.
The Fixed Penalty Notice of 14 February 2021 was issued by a police constable, in the sum of £10,000. Subsequently, the police decided that it ought to have been authorised at a more senior level, by a superintendent, although it has not been suggested to us that this was required as a matter of law. Consequently, another Fixed Penalty Notice, duly authorised at that level, was issued against the claimant and sent to him by post on 26 April 2021.
The claimant did not pay.
The police, acting as prosecutors, issued and sent to the claimant by post (pursuant to section 29 of the Criminal Justice Act 2003) a Single Justice Procedure Notice charging him with the offence. It stated that the posting date was 20 August 2021. It said that the claimant had 21 days to plead guilty or not guilty. It said that the fine stood at £800. It enclosed evidence in support of the prosecution. It gave the claimant three options: (1) pleading guilty under the Single Justice Procedure, after which a decision by a magistrate would be made without a formal court hearing and without his attendance; (2) pleading guilty in court, in which case a summons would follow, giving the date and time of a court hearing, which might proceed in his absence if he did not attend; or (3) pleading not guilty, in which case, again, a summons would follow, notifying him of the date of a court hearing.
The Single Justice Procedure Notice documents required the claimant to choose one of these three options in a section headed “Your Plea”. Page 11 had an additional section, headed “Not guilty: information for the court”, which required the claimant, in the event that he chose to plead not guilty, to complete a box stating: “I am pleading not guilty because: ….”
Page 4 of the Single Justice Procedure Notice documents (headed “Charge Sheet”) stated that the “charge date” was 11 August 2021.
On 31 August 2021 the claimant sent back his response to the Single Justice Procedure Notice documents, pleading “not guilty”. The reason he gave for this was: “I am innocent and have committed no crime”. His response was received by Her Majesty's Courts Service on 3 September 2021.
The case was originally listed for trial on 23 February 2022. The claimant's advocate invited the bench of magistrates on that occasion to deal with preliminary legal arguments and she opened her case on the prosecution being statute barred. The magistrates decided that they did not have time to make any decision, even on the legal point. Since the trial had to be adjourned in any event because of late disclosure, they adjourned the legal argument as well.
The case came back to court on 28 February 2022, before District Judge Snow. The claimant was not present but he was represented by his advocate, who argued that the prosecution was out of time. That issue was dealt with as a preliminary issue by District Judge Snow on 28 February 2022. After listening to arguments from both sides on whether the prosecution was out of time, the judge gave an oral explanation for ruling against the claimant, of which a brief solicitor's note was taken.
The claimant was subsequently tried and convicted on 26 April 2022 and fined £200.
The claimant applied for a case to be stated in relation to District Judge Snow's decision on 28 February 2022 so that it could be challenged in the Administrative Court. The application was made in a document settled by Counsel dated 18 March 2022 entitled “Application to State a Case – Grounds of Appeal”. It summarised the facts, the law, the arguments advanced on 28 February 2022, and the grounds of appeal against the decision of District Judge Snow on that date. This application was received by the court on 26 April 2022.
On 6 May 2022, the Crown Prosecution Service provided a short response to the substantive grounds of appeal citing rule 35.3(3) of the Criminal Procedure Rules, but did not specifically oppose the request for a case to be stated.
As a result of administrative delays, the application for a case to be stated was not brought to District Judge Snow's attention until 18 August 2022. He refused it with written reasons dated 6 September 2022 which justified his original decision. He ended by saying: “I certify that this application is frivolous and I refuse to state a case pursuant to section 111(3) of the Magistrates' Courts Act 1980”.
The Claim Form seeking judicial review of the refusal to state a case was filed on 6 December 2022 and an Acknowledgment of Service was filed on behalf of the Crown Prosecution Service, as Interested Party. The defendant (Westminster Magistrates' Court) did not file a defence and adopted a neutral stance.
Permission to apply for judicial review was granted by Mr Justice Lavender on 12 April 2023.
A witness statement made by District Judge Snow and dated 20 April 2023 was then filed and served. It elaborated on the reasons he had given for refusing to state a case. It concluded: “I do not contest the claim in this case. I submit this statement to clarify the position.”
The law
Section 127 of the Magistrates Courts Act 1980 provides (with exceptions in the case of indictable offences, which are not relevant):
127 Limitation of time.
(1) Except as otherwise expressly provided by any enactment (…), a magistrates' court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offence was committed, or the matter of complaint arose.”
The claimant was charged under the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020 (“the 2020 Regulations”). The 2020 Regulations were made under the Public Health (Control of Disease) Act 1984 (“the 1984 Act”).
Section 64A of the 1984 Act provides:
“ 64A Time limits for prosecutions
(1) Notwithstanding anything in section 127(1) of the Magistrates' Courts Act 1980, a magistrates' court may try an information (or written charge) relating to an offence created by or under this Act if the information is laid (or the charge is issued) —
(a) before the end of the period of 3 years beginning with the date of the commission of the offence, and
(b) before the end of the period of 6 months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to the prosecutor's knowledge.”
In Letherbarrow v Warwickshire County Council [2014] EWHC 4820 (Admin), Bean LJ considered section 31(1)(b) of the Animal Welfare Act 2006 which is in identical terms to section 64A(1)(b) of the 1984 Act. He said, at para 17:
“It is an unusual time limit provision in that it extends the time limit for prosecution potentially well beyond the usual 6 months set out in the Magistrates' Court Act 1980. It creates a first alternative, a long stop time limit of 3 years, and a second alternative, 6 months beginning with the date on which evidence which the prosecutor thinks is sufficient to justify the proceedings comes to his knowledge. If the prosecution do nothing at all for more than 2 years, then stir themselves and issue summonses within 5 months of evidence coming to their knowledge, then they would be within the time limit set out in section 31(1).
What the section does show is that Parliament expected the consideration of a prosecution under this section to be the subject of a careful decision. The decision which the prosecutor has to make under this subsection is not whether there is a prima facie case but whether the evidence is sufficient to justify a prosecution.”
In R v Woodward [2017] EWHC 1008 (Admin), [2017] Crim LR 884, Hickinbottom LJ cited this passage from Lether...
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