North Wales Police v Anglesey Justices

The way in which this renewed application (made out of time, as it happens) for permission to appeal has been advanced, at least in writing, has a decidedly Dickensian air about it. The arguments, insofar as they have any force, are I think a triumph of form over substance. They might have made some headway before 1852 when forms of action held sway, but as Maurice Kay LJ said in the Divisional Court when granting judicial review of the decision of Anglesey Justices of 25 January 2007:

“Statute has deliberately permitted informality, and it would be quite wrong for this court to superimpose rigidity reminiscent of that surrounding the forms of action at common law before 1852.”

On 14 February 2006, Mr Ghani’s dog bit Police Constable John Jones of the North Wales Police, at least according to the constable. Proceedings were initiated against Mr Ghani in the Magistrates’ Court under section 2 of the Dogs Act 1871. Such proceedings are civil proceedings, not criminal, and have to be started by a complaint, not by information. If they are started by information, as it were a prosecution, they are a nullity (see R v Nottingham Justice, ex parte Brown [1960] 1 WLR 1315). Section 2 of the 1871 Act provides for the Magistrates to make a summary order directing that the dog be kept under proper control or destroyed. Failure to comply with such an order can result in a criminal penalty, and it is, incidentally, this criminal part, not the subject of the present proceedings, which is assigned for prosecution to the Director of Public Prosecutions.

The substance of the Justices’ decision of 25 January 2007 was that the initiating document in this case was an information, not a complaint, so that they said the proceedings were a nullity. The Divisional Court disagreed, holding that the initiating document was a complaint. The applicant wants to appeal that decision. The judgment of the Divisional Court was given on 5 February 2008. I refused permission to appeal on the papers.

The initiating document was a pro forma completed on 22 April 2006, headed “North Wales Police Summons Heading Form”, which provided a space for “offender’s details”. It was not an appropriate pro forma to use. Nevertheless, the body of the document said in terms that:

“…complaint is laid by Pc2184 Jones [and that he] applie[d] for an order that the dog be kept under proper control or destroyed.”

This was expressly stated to be pursuant to section 2 of the Dogs Act 1871. The body of the document thus made it abundantly clear that this was a complaint under the first part of section 2 of the Dogs Act 1871. As Maurice Kay LJ said, it is apparent on the face of the document that PC Jones was seeking to invoke the jurisdiction under section 2, and the words “complaint is laid by PC Jones” were appropriate words for that purpose. The staff of the Magistrates’ Court were correct to receive it as a complaint.

Jurisdiction derived from this initiating document; it did not affect the matter of jurisdiction that a subsequent summons spoke of an information and the informant, since “objections and defects in the form of procuring the appearance of a party charged will be cured by appearance” (see Baron Huddleston in R v Hughes (1879) 4 QBD 614 at 633).

The decision that the initiating document here was a complaint under section 2 of the Dogs Act 1871 is the only point in these judicial review proceedings as to which the Divisional Court were, in my judgment, plainly right. They were right to point out that rule 2.1 of the Magistrates’ Courts (Forms) Rules 1981 is expressed in terms which show that the use of statutory forms is not mandatory, and embody an untechnical approach.

The proposed grounds of appeal are voluminous but, in my judgment, unpersuasive. It is said that both Mr Ghani and the Magistrates were confused. It is said that the Divisional Court’s reading of the form with its heading was wrong, and that it should not have been seen as a complaint by reason of its content. It is said that the Divisional Court failed to consider whether the claimant had standing to bring judicial review proceedings in the light of the statutory assignment of proceedings under section 2 of the 1871 Act to the Director of Public Prosecutions. This, however, plainly refers to the subsequent prosecution of a person who fails to comply with an initial direction and not to the initiating complaint. This point was not, so I understand, taken before the Divisional Court, and rightly so. The claimant plainly had standing. It is said that the Divisional Court were wrong not to apply the Nottingham Justices case (R v Nottingham Justices ex parte Brown [1960] 1 WLR 1315), but that supposes wrongly that the initiating document was an information, not a complaint. It is said that the decision ignores defects in disclosure, but that is nothing to the point, since the only issue was whether the initiating document was a complaint or an information. There are further repetitive submissions about the Divisional Court’s failure to apply Brown.

It is not, in my view, necessary to consider whether an extension of time should be given for this application, since it has no merit, in that, for the reasons I have given, an appeal would have no real prospect of success. For these reasons, the application for permission is refused.