Serious Fraud Office v Selby Justices & Ors

LORD JUSTICE KENNEDY: This is an application by the claimant prosecutor for an order to quash the decision of the Selby Magistrates' Court taken on 5th August 2003 to withdraw the entirety of the case brought by the Serious Fraud Office against Charles Alistair Forsyth. We must look first of all at the background to this matter.

It is clear from the witness statements of John Paul Benstead, a solicitor employed by the Serious Fraud Office, who is the case controller in respect of this investigation, that in July 1999 the North Yorkshire police and the Serious Fraud Office commenced an investigation into the trading activities of Personal Computer Sciences Ltd, a company trading in North Yorkshire which went into receivership in July 1999 with debts to creditors of approximately £4 to 5 million. Mr Forsyth had been managing director of the company until shortly before it ceased to trade. The investigation indicated that a number of offences may have been committed by Mr Forsyth and, by 2001, after a substantial investigation, the police were ready to interview him. He was represented by Eversheds solicitors. They were provided with pre-interview disclosure. The interview was due to take place on 26th November 2001, but on 18th November Mr Forsyth flew to Bulgaria and it appears that he has not since then returned to the United Kingdom.

In April 2002 the Serious Fraud Office was contacted by Eversheds who said that Mr Forsyth was willing to return to the United Kingdom to be interviewed. Further pre-interview disclosure was then provided and a second appointment was made for Mr Forsyth to be interviewed at York police station on 11th June 2002. However, on 10th June 2002 Mr Benstead received an email from Eversheds to which was attached a letter from Mr Forsyth who was in Moscow. In that letter he said that he was unable to travel to the United Kingdom for interview because he could not get time off work, he could not afford to travel and he was recommended by a doctor not to travel because of his poor health. In fact, he flew to Perth, Western Australia, on 13th June 2002, that is to say some three days later. Eversheds then ceased to represent him.

The Serious Fraud Office and the police then began to seek the extradition of Mr Forsyth from Western Australia. On 14th to 17th October 2002 the matter was listed at York Magistrates' Court before Mr Southby, a magistrate, and evidence was led to establish a prima facie case. There were nine informations issued alleging fraudulent trading, breach of trade mark, breach of copyright, obtaining a pecuniary advantage by deception and furnishing false information. On 17th October 2002 Mr Southby signed a warrant of arrest. The deposition material was substantial. We are told that it now runs to 17 volumes.

On the day that the warrant was issued it was faxed to Interpol and they contacted the Australian Federal Police, with the result that on 3rd November 2002 Mr Forsyth was arrested and remanded in custody to await proceedings for extradition. On 13th December 2002 in the Magistrates' Court at York (or Selby) the case was adjourned, the nine informations to which I have already referred to being marked adjourned sine die. In Australia the extradition proceedings were originally listed for March 2003, but they were adjourned because Mr Forsyth dismissed his original Australian lawyers and instructed new lawyers who needed time to prepare.

Back in York, on 9th May 2003 Mr Benstead appeared at the Magistrates' Court, again before Mr Southby, to obtain two supplementary depositions for use in the Perth Magistrates' Court. On that occasion he brought Mr Southby up-to-date as to the position in relation to extradition proceedings. Miss Gillard, who appears before us today on behalf of the interested party, Mr Forsyth, says on that occasion it is not clear precisely what Mr Benstead said to the justice and, indeed, so far as it goes, that is right. But clearly he was in a position to tell the court what had been happening up to that date. It is of some significance that on that occasion Mr Gordon Martin, legal adviser to the North Yorkshire Magistrates' Court Service, was in court, as he had been at all previous hearings, but in the light of subsequent events it seems that no record was made on the court file as to what happened on 9th May 2003, or indeed that anything had happened at all.

In June 2003 Mr Forsyth dismissed his second set of legal advisers in Australia, and the extradition proceedings were further adjourned to August 2003 to enable him to prepare to represent himself.

That brings me to 5th August 2003 when, it seems, without prior notice to the Serious Fraud Office or the relevant officer of the North Yorkshire Police (whose name, address and telephone number was on every single information), or for that matter to Mr Forsyth or his representatives, the Selby Magistrates' Court, a part of the York Group of Courts, engaged in what the acting Deputy Clerk to the justices, Mr David Brown, later described as a "rolling review" of old outstanding warrants for consideration as to whether those warrants should remain outstanding. Mr Brown accepts that this case was included in the list in error, and without hearing any representations the court ordered that the case and all outstanding warrants be withdrawn.

Meanwhile, in Australia, on 21st August 2003 the extradition proceedings began and went over to 25th September 2003 when it was expected that the presiding magistrate would give his decision.

By August 2003 Mr Forsyth did have another English solicitor acting for him, Mr Lickrish of Cooper Kenyon and Burrows of Manchester. On 16th September 2003 Mr Lickrish telephoned Mr Benstead to say that on 25th September 2003 Mr Forsyth would be consenting to extradition. Mr Lickrish enquired whether on arrival in England Mr Forsyth could be taken to Bow Street Magistrates' Court in London rather than to York, because Mr Lickrish was concerned about what the long flight might have done to Mr Forsyth's state of health. Mr Benstead was neutral and left it to Mr Lickrish to contact York Magistrates' Court. That led to the disclosure of what had happened on 5th August 2003. Two days later on 19th September 2003 Mr Martin telephoned the Serious Fraud Office to report the error. Naturally Mr Benstead was very concerned. He told Helen Garlick, the Assistant Director of the Serious Fraud Office with overall management of the case, and went at once to York to see what could be done. In the result the legal advisers to the justices decided that they had no power to correct their own error, and the Australian authorities naturally made it clear that unless a valid warranted existed in England they would have to terminate extradition proceedings and release Mr Forsyth.

So on 22nd September 2003 the Serious Fraud Office brought these proceedings. On that day, by consent, Burton J granted permission to apply for judicial review and ordered that pending the hearing of the substantive application the decision of 5th August 2003 should not affect the validity of the arrest warrant. On 30th September 2003 a short extension of time was granted for filing an acknowledgment of service, and the matter was transferred to the list for this court.

On 15th October 2003 Mr Cundiff, who was the clerk to the court on 5th August 2003, made a statement in which he says that there was no information on the court file after 13th December 2002 when the case was adjourned. Thus it became clear that the file was incomplete because the hearing on 9th May 2003 was not recorded as it should have been.

Mr Qureshi, on behalf of the Serious Fraud Office, submits to us this morning that this catalogue of errors should lead this court to intervene, and that plainly it has power to do so. Miss Gillard, on behalf of the interested parties, submits that we should be slow to act because we are dealing here with a decision which affected a man who has not been convicted, it was a decision in his favour and there is no statutory mechanism for reviving a warrant which, pursuant to the power granted to it in section 125 of the Magistrates' Court Act 1980, the magistrates' court had the power to withdraw. She accepts that there was a catalogue of errors, indeed she helps to identify them. But she submits that the magistrates plainly did have power to withdraw the warrant. They also, it would seem, have the power to dismiss the informations not to withdraw them and there is, as she points out, no statutory requirement upon the magistrates to notify anyone before exercising their power to withdraw. She points out that Mr Benstead does not go into detail about what he said to the court on 9th May as to the state of progress of matters in Australia. She submits that there has been here, on the part of the Serious Fraud Office, what she describes as a "leisurely" approach.

For my part I am unable to discern any evidence of the Serious Fraud Office having acted in a way which is other than entirely appropriate in the circumstances of this unfortunate matter. She points out that after May there is no evidence that the Serious Fraud Office did update the magistrates' court in York about what happened in Australia in June when, for the second time, a hearing date had to be vacated because the interested party had chosen to dispense with the services of his second firm of lawyers. That, so far as it goes, is true. But, as it seem to me, having regard to the timescale nothing whatsoever turns on that because, on the face of it, the proceedings in Australia were going to proceed, as indeed they did, in August and the matter would no doubt have been reported to the York magistrates on or very soon after the decision was taken at the end of September.

Miss Gillard goes on to submit that although the clerk to the justices has accepted that the case was listed in Selby in error, there is no formal acceptance that the decision was taken in error, but the inference which arises from the documentation is quite clear, namely that the matter should never have been put in front of the court at all to make a decision.

Finally she submits that there is here an alternative remedy available, that is to say it would be possible to proceed from the beginning again. She submits that in terms of what is required that would not have been unrealistic at the time when it first came to light that this error had been made. But of course the Serious Fraud Office had to weigh in balance the consequences of starting again. One of the consequences would have been to indicate that what had happened at Selby on 5th August was in some way regular and could be accepted, and as Mr Qureshi pointed out in reply that never was the case. The Serious Fraud Office's view was that what happened was totally irregular, and that the appropriate way to deal with such an irregularity was to come before this court. Furthermore, if proceedings were restarted there obviously does arise the question, first of all, whether or not in Australia it would be appropriate to hold on to the interested party for any length of time at all, and even if it were possible to retain him in custody, the question would inevitably arise as to whether or not he had been properly held in custody between 5th August and the date (whatever it might be) upon which a new warrant came into existence.

In all those circumstances, as it seems to me, there is no force whatsoever in the suggestion that there was here an acceptable alternative to the course which was followed in this particular case of seeking relief from this court. I accept, as I have already indicated, that under section 125(1) of the Magistrates' Court Act 1980, a warrant of arrest issued by a justice of the peace can be withdrawn by the person who issued it. The warrant in this case could not be executed until Mr Forsyth was brought within the jurisdiction. So clearly on 5th August 2003 the court sitting at Selby did have the power to withdraw the warrant which had previously been issued by the court sitting at York. But that power could only be properly exercised if the relevant information was laid before the court, which plainly did not happen in this case. There was, therefore, as it seems to me, an improper exercise of power. In those circumstances, it is within the jurisdiction of this court to intervene to correct what has occurred.

Mr Qureshi in his skeleton argument drew our attention to the decision in the case of R v Bedwellty Justices ex parte Williams [1997] AC 225, where Lord Cooke said at page 233 that any error made by an inferior court in reaching its decision, in that case in committal proceedings, can be quashed by what is now a quashing order for error of law. We are not dealing with committal proceedings, but the approach adopted by the House of Lords in the case of Williams seems to me plainly to apply to a case such as this.

I would, therefore, grant the order sought. I cannot leave this case without expressing finally my dismay about what happened in this case. It seems to me that in the first place it is extraordinary and calls for a proper explanation that proceedings having taken place in open court at York in May no record was made on the relevant file of those proceedings. Secondly, I am frankly astonished that in August the matter could be listed for disposal at Selby without either the informant, the Serious Fraud Office, or the relevant officer of the North Yorkshire police, or the interested party, the defendant, being told what was going on. I accept that on occasions it may not be possible to make contact, for example with the defendant, but plainly it was possible to make contact with the informant and with the relevant police officer, and neither step seems to have been taken. That seems to me to be no less than incompetence, and were it the case that the Serious Fraud Office had asked to be indemnified in respect of costs in relation to today's proceedings, I would have been prepared to give serious consideration to that request, despite the normal practice of this court not to give costs against justices where they do not appear.

MR JUSTICE ROYCE: I agree.