When to Query Summons as Vexatious
| DOI | http://doi.org/10.1177/002201839906300509 |
| Published date | 01 October 1999 |
| Date | 01 October 1999 |
| Subject Matter | Article |
The Journal
of
Criminal Law
was 'presumably so' in the context of criminal proceedings. In
the
light
of the observations of Lord Goddard CJ in R v Northumberland
CAT,
exp
Shaw [1951]1 KB 711,
the
court had on this occasion no option
but
to
follow what was said in
Swan
v Law
Society
in preference to
what
was said
in the Thai case, even
if
the doctrine of precedent had
not
compelled
them
to do so. On that basis,
the
respondent's case was, as Rose U said,
'unanswerable'.
When to Query Summons as Vexatious
R v Bradford
Justices'
Clerk,
ex p
Sykes
and
Shoesmith
(1999) 163 JP 224
Two applicants for judicial review of the decision of the magistrates'
clerk to issue summonses against them arose in the following circum-
stances. Sykes was arrested and charged with conspiracy to supply a
Class A drug (heroin). After several appearances before
the
magistrates,
he was joined by his brother (named Shoesmith)
who
was similarly
charged. After several further adjournments the custody time limits ran
out. The magistrates refused an extension of the time and granted the
defendants bail. As the prosecution still was not ready to proceed on the
date fixed for
the
hearing, afurther adjournment was requested. This
was refused and, in the absence of any evidence, both defendants were
discharged. Next day, however, fresh informations were laid
and
fresh
summonses were issued. Both defendants applied for judicial review of
the decisions to proceed in this way.
The decisions in R v
Manchester
SM,
exp
Snelson
[1977] 1 WLR911
and
inR
v
Grays
JJ,exp Graham [1982]3 All ER 653 establish
the
rule
that
the
discharge of a defendant in committal proceedings does
not
operate as a
bar to a subsequent prosecution for
the
same offence, provided the
prosecution is
not
acting vexatiously.
Where asummons is issued to avoid the operation of custody time
limits or in order to give
the
prosecution what has been called 'a dry
run'
(see R v
Horsham
JJ, exp
Reeves
[1981] Crim LR 566), an application for
a fresh summons would be an abuse of process
if
the first proceedings
had
failed. But in the instant case, it was shown that the earlier proceed-
ings
had
clearly established that there was a prima fade case made
out
by
the prosecution against the defendants (a 'strong' case against Sykes
and
an 'apparent' case against Shoesmith), In these circumstances, it could
not
be argued by the applicants that as the case stood
when
it was before
the Divisional Court the summons, as judged at that moment, could
be said to be vexatious. What, therefore, was argued was that it was
vexatious because the very next day after the case was dismissed
and
the
defendants discharged in the magistrates' court, fresh summonses were
sought (and granted), although there clearly could have been no change
in the circumstances overnight. The applicants claimed that on those
facts there was an affront to the magistrates who had granted the
defendants their discharge. The issue which was thus raised in the
Divisional Court was whether, on the assumption that the immediate
406
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