Atkinson v Director of Public Prosecutions

LORD JUSTICE AULD: Section 127 of the Magistrates Courts Act 1980 provides that:

Before the advent of present day computer technology, a written information was laid by delivering it either by post or by hand to the magistrates' court where it would or should be stamped with the date of its receipt for later incorporation in a summons. In R v Manchester Stipendiary Magistrates, ex parte Hill [1983] AC 328, HL, Lord Roskill, with whom the other law Lords agreed, held that a written information is laid for the purpose of section 127 when it is received at the office of the clerk to the justices for the relevant area. If it is received out of time, a recipient of the summons issued as a result of it may invite the magistrates not to proceed with the matter for want of jurisdiction. That is how the matter should be considered, as it was in ex parte Hill, not as an issue of abuse of process as the District Judge appears to have done in this case. The threshold notion of jurisdiction is usually, as in the case of section 127, capable of ready identification and application. Only if there is jurisdiction, may the more elastic notion of abuse of process arise for consideration.

Nowadays there is a computer system, to which the police and magistrates have access, in which the police may enter details of an alleged offence which, as they enter them, are at the same time entered on the computer at the magistrates' court. It appears that this can, if the circumstances require it, be done in an incomplete way, requiring a further entry or entries before all the details necessary for the information are present. Once the police consider that all the details necessary to constitute an "information" are included, they "validate" the information. Thereafter, it is for someone in the clerk's office at the magistrates' court to print a summons. At the head of the printed summons there is an "Information Date", which is the date of the initial police entry. But, if the police have had to make further entries, either to complete necessary further details not to hand on that date or, say, to amend or correct a faulty information, the effective date of laying the information may be later than that shown as such at the head of the summons. Thus, the initial data entry date shown on the summons is not necessarily the date for the laying of the information for the purpose of section 127.

It appears that any subsequent entries prior to and including validation of the information are contained in the computer system itself. But, unless there is evidence of that, and there was not in this case, it may not be possible for the prosecution to establish to the criminal standard of proof the exact date when the information was effectively laid.

That may be important in a case like this, where the information is laid, or allegedly laid, by computer within a short time before the end of the six months' limitation period set by section 127. The initial data entry recording that exercise may, for all the recipient of the summons knows, have been insufficiently complete so as to require later completion, or it may have been incorrect so as to require later correction by a further data entry. In either case such further entry may have been made after the effluxion of the 6 months' time limit.

The matter comes before the Court as an appeal by David Atkinson by way of case stated by District Judge Day from his ruling in the Ealing Magistrates' Court on 14 August 2003 that a prosecution should proceed against Mr Atkinson for the summary offence of carrying an insecure load, contrary to Regulation 100(2) of the Road Vehicles (Construction and Use) Regulations 1986 and section 42 of the Road Traffic Act 1988. At an adjourned hearing before a different Ealing bench, one of lay magistrates, on 16 September 2003, Mr Atkinson was convicted of the offence and fined.

The date of the alleged offence was 16 June 2002. The information date printed at the head of the summons was 10 December 2002; that is six days before the effluxion of the six months' limitation period. The summons, which was dated 9 January 2002, included a statement of facts. It also bore the date when the information was printed, 20 December 2003; that is four days outside the limit. As the District Judge observed in his statement of case, the significance of that date is that, on the evidence before him, the summons could not have been generated before then. And, at any time from the initial information data entry shown on the summons of 10 December 2002 up to then, it would have been possible for the police, as part of the process on the way to validation, to have added to the information or to have changed it, effectively delaying the date of its laying for this purpose.

As I have indicated, there was no evidence before the District Judge of what, if any, details had been added or changes made after the initial information data entry shown on the summons of 10 December 2002.

Mr Atkinson sought a stay of the proposed prosecution as an abuse of process on the ground that he was unable to discover, on the material before the court, the precise date of the laying of the information, given that it could have been added to or amended up to 20 December 2002, four days outside the time limit. He made no allegation of bad faith. His case was simply that, as he could not go behind what was shown on the summons to establish whether there had been any addition to or alteration of the information after the initial information entry date shown at the head of it, he was deprived of a possible defence and that any doubt on the matter should be resolved in his favour. The prosecution agreed that, on the material before the court, there could have been such an amendment, but simply asserted, as was the case, that there was no evidence of it.

The District Judge refused the application for a stay, holding that there had been no abuse of process. He stated at paragraph 8 of the Case:

The question he has asked this court to determine is whether he was right in law to rule on the facts before him that the proceedings should not be stayed as an abuse of process, although the date on which the information was laid could not conclusively be determined and therefore may have been outside the six months' time limit.

Miss Karen Moss, on behalf of Mr Atkinson, has submitted that the District Judge erred in law on the facts in ruling as he did. She says that he should have declined jurisdiction or stayed the prosecution as an abuse. In so submitting she advanced three arguments.

The first is the most straightforward, going as it does to jurisdiction of the magistrates' court to hear and determine the proposed prosecution. Miss Moss submitted that, if, as on the evidence, the information date of 10 December 2002 shown on the summons may not have been the date when the information was laid, the doubt on the matter should be resolved in favour of Mr Atkinson. She has emphasised that the purpose of an information is to enable a magistrates' court to consider whether to issue a summons (somewhat theoretical nowadays) and that it is the foundation of its jurisdiction to hear the case. She rightly drew attention to Rules 4 and 100 of the Magistrates' Courts Rules 1981. The former provides for the commencement of a prosecution in the magistrates' courts by the laying of an information or the making of a complaint. The latter describes the requirements, albeit not rigorous, for a document to constitute an information. It provides that it:

Miss Moss submitted that the validation exercise that I have described is the moment at which the data entered by the police onto the computer system clearly satisfies, or should satisfy, those basic requirements. Any incomplete entries may not do so. And, unless they do satisfy them within the time limit, the court never reaches the stage of acquiring jurisdiction to hear and determine the prosecution.

The uncertainty on the evidence in this case as to the effective date of laying of the information on the way to validation, and as to its effect on jurisdiction, is one, as I have said, that Miss Moss has submitted should be resolved in favour of Mr Atkinson. She has the authority of this court, consisting of Lord Parker CJ, Havers and Edmund-Davis JJ (as they then were) in Lloyd v Young & Ors [1963] Crim LR 703.

Mr Nicholas Preston, who has been instructed by the Director of Public Prosecutions at very short notice, said that he had no answer to Miss Moss' submission on the issue of jurisdiction. But he nevertheless went on to rely on the District Judge's recourse to the notion of abuse of process and his reasoning that the uncertainty here as to the laying of information did not, in the absence of impropriety, come within any recognised category of abuse of process which could prevent the prosecution proceeding. He suggested that there could be no prejudice to Mr Atkinson's right to a fair trial because the delay, if any, was only for a few days. For the reasons I have given, Mr Preston's argument in this respect was misconceived. If there was no jurisdiction because the information was made outside the time limit, it could not be revived by praying in aid the absence of abuse of process and the opportunity for Mr Atkinson of a fair trial.

In Lloyd v Young and Ors there was doubt on the face of the summonses as to the date of the laying of the information. The court dismissed the prosecutor's appeal against the magistrates' dismissal of the information for want of jurisdiction. They held that the summonses were on their faces bad, and that, although that defect was not of itself fatal to the prosecution, the question was whether there was sufficient evidence for the justices to say that they were satisfied that the information was laid within six months. They concluded that, on the evidence, the justices were entitled to dismiss the information because of their doubt as to its date.

Now that was a case in which the uncertainty was evident on the face of the documents relied on as informations. Here, the uncertainty arises not from the face of the document, but from uncontradicted evidence as to police practice and their computer system giving rise to it. In my view, the distinction is not material. The ratio of the decision is that, if on evidence of whatever nature before the court, magistrates doubt the date of the information, such that it could have been laid outside the time limit, they are entitled to, and should decline, jurisdiction. It is a matter of fact for their determination in accordance with the ordinary criminal burden and standard of proof.

In my view, on that simple proposition, fortified by the strong authority of Lloyd v Young and Ors, Miss Moss' first submission should succeed. The data giving rise to the printing of the summons in the magistrates' court shortly after the effluxion of the time limit may or may not have been in sufficient form at the initial data entry date or over the few days thereafter before the effluxion of that limit.

The District Judge, whose attention seemingly was not drawn to Lloyd v Young and Ors, does not, in his reasoning in paragraph 8 of the case, appear to have grappled with the issue as a matter of jurisdiction. As I have said, he dealt with it as one of abuse of process. He focused on, and rejected, unfairness as a possible category of such abuse. Rehearsing his construction, he rejected "a complete lack of evidence of impropriety" as being capable of "[raising] the possibility that there may have been" such a category.

He came nearer to identifying the proper question in the question he posed for this court, namely, whether the proceedings should be stopped because of the uncertainty as to whether the information was laid outside the time limit. For the reasons I have given, he was wrong, given such uncertainty, not to apply to it the ordinary criminal burden and standard of proof. If it has to be looked at as a matter of unfairness, that burden and standard embody the long-standing principle of fairness in criminal cases. And failure to meet it does not need any separate treatment, whether under Article 6 or otherwise. Here, unless the prosecution could prove the date of the information, there was uncertainty for want of evidence, and that was unfair to Mr Atkinson in that it denied him the opportunity to challenge, if appropriate, the prosecution's assertion that the information had been laid in time.

Accordingly, in my view, it is not necessary for the court to consider Miss Moss' alternative submissions. The first of them is a mix of her main argument as to want of jurisdiction and as to abuse of process; the second, in its focus on Article 6 of the European Convention of Human Rights and "legitimacy of the process", does not add anything of substance to either of the foregoing submissions. Therefore, for the reasons I have given, I would answer "No" to the District Judge's question. I would allow this appeal, direct that the conviction should be quashed and that the matter should be remitted to the District Judge with a direction that, given the acknowledged uncertainty whether the information was laid in time, he should decline jurisdiction.

This judgment may have wide-ranging implications for the manner in which the police may continue to use the computer system that I have described so as to secure both administrative efficiency and fairness to potential defendants who may be uncertain as to whether they have a jurisdictional defence under section 127. It may be that the computer can be programmed so as to make readily retrievable any entries and their dates between the initial entry date and that of printing of the summons. Or it may be that it could be programmed so that there is no communication of entries on the police system to the magistrates' courts' terminals until validation, so that date of validation would patently be the date of the laying of the information before the magistrates. There may be other possibilities.

MR JUSTICE PITCHERS: I agree.

MISS MOSS: There is the issue as to costs. I request that your Lordships use your discretion under section 28A(3) of the Supreme Court Act 1981 to award costs to this appellant. Mr Atkinson is said to be privately funded, supported by his Union, in this matter. He has clearly been successful and the DPP has not been particularly helpful in their conduct. Unless you wish me to address you further.

LORD JUSTICE AULD: Mr Preston, what do you say?

MR PRESTON: I do not think I can say anything.

LORD JUSTICE AULD: The appeal will be allowed with costs.

MISS MOSS: I am grateful.