Director of Public Prosecutions (DPP) v Bird

MR JUSTICE BEATSON: This is an appeal by the prosecution by way of case stated. The case was stated on 20 July 2015 by District Judge (Magistrate's Court) Matthews in respect of her decision on 7 May 2015 at the Bristol Magistrates' Court. She refused to allow the prosecution to proceed on a charge of criminal damage between 25 January and 18 September 2013 that another bench of magistrates, lay justices, had dismissed on 20 March 2015. I take the facts as the District Judge found them from the case stated.

The other bench to which I will refer as the March Bench, had dismissed the charge on the ground that the alleged offence occurred more than six months before the postal requisition was sent to the respondent Maria Bird and in the judgment of the magistrates on that occasion was caught by the limitation period in section 127 of the Magistrates' Court Act 1980 Act; see case stated paragraph 3. By S.127(1), except as otherwise expressly provided by any enactment and subject to subsection 2:

On 1 April 2015, the prosecution wrote to the court seeking in the words of the case stated but perhaps reflecting a former procedure, "to obtain a fresh summons in relation to this offence in order to resurrect the proceedings." The prosecution contended that the magistrates' court in March had been wrong to conclude that the previous proceedings were time barred pursuant to section 127 of the 1980 because the offence charged, criminal damage, was an indictable offence and consequently not subject to the six-month limit in section 127. It was submitted that in any event the magistrates had no power to dismiss the proceedings because section 127 provides only that a magistrates' court "shall not try an information" unless it was laid within the time limit.

The court's endorsement after the March hearing read "Dismissed-out of time" and the court register showed that the case was dismissed. The prosecution, however, submitted that it followed from the words of section 127 that that there had in law been no dismissal of the previous charge in March but only a refusal to try it; see the case stated paragraph 4. Thereafter, on 9 April 2015, a postal requisition was issued to the respondent recharging her with the offence of criminal damage between 25 January and 18 September 2013.

The material parts of the case stated following the 7 May hearing which was the first hearing, are:

The issuing of the postal requisition is in my view flawed as the magistrates had clearly dismissed the very charge which the CPS wished to in their words 'resurrect'. No attempt was made by the crown to reconvene the original bench for clarification."

The questions for the opinion of this case are as follows.

The grounds of appeal are that the District Judge had no power to prevent the prosecution from proceeding on the new charge for two reasons. The first was that the respondent had not been lawfully acquitted by the previous bench of magistrates so she could not rely on a plea of autrefois acquit, ie the principle precluding double jeopardy. The second reason was that the only other legal impediment to a prosecution of the respondent for the same charge as had been previously dismissed was if the circumstances of the prosecution amounted to an abuse of the court's process. It was submitted on behalf of the prosecution by Mr Boyd in writing and orally, that the prosecution was not seeking to go behind a reasonable and lawful decision to dismiss, therefore, there would have been no ground to have invoked the exceptional remedy of a stay.

There has been no appearance on behalf of the respondent or other than the case stated, the court. I turn to the questions for the opinion of the court.

Mr Boyd made concise and focused submissions in support of the prosecution's grounds. I agree with him that it is appropriate to deal with the third question first. That is the District Judge was wrong not to permit the prosecution to proceed on the new charge. It raises the central issue at the heart of this appeal.

My starting point is the decision in R v West [1964] 1 Q.B. 15 approved by the House of Lords in R v Dorking Justices, Ex parte Harrington [1984] A.C 743. In West's case, justices had summarily tried and dismissed an information which they had no jurisdiction to try because the offence in question (in that case being an accessory after the fact) was not triable summarily but only on indictment. After the justices had acquitted the defendant and were told that they had acted with no jurisdiction, they made a further decision and committed the defendant to the Quarter of Sessions where he was indicted and convicted. His appeal against the refusal of the Quarter Sessions to quash the indictment was dismissed. Mr Justice Streatfield stated that the Quarter Sessions had jurisdiction to decide whether there had been a prior effective acquittal by a court of competent jurisdiction. He also stated at page 30:

In order to determine whether the District Judge erred in law in not permitting the prosecution to proceed on the "new" charge, it is therefore necessary to determine the position and status of the earlier March proceedings. The starting point is the reliance by the lay justices on S.127 of the 1980 Act, the material parts of which I have set out. That provision only imposes a six month limitation period for summary offences and does not apply "in relation to any indictable offence."

Although the matter is not quite as simple as Mr Boyd put it in his skeleton argument, the offence of criminal damage is clearly indictable. The effect of the decisions, in particular R v Fennell [2000] 2 Cr. App. R 318 and R v Aldon [2002] 2 Cr R (S) 74 is that the offence is triable either way. Although where the damages of a value of less than £5,000, the offence is to be treated as if triable only summarily, that does not mean that it is to be treated as a summary offence for all purposes. The cases of Fennell and Aldon and the environmental prosecution in Kemp and Liebherr (GB) Limited [1987] 1 All England 885, make it clear that the offence remains an either way offence with no time limit and that this has not been affected by provisions such as section 40 of the Criminal Justice Act 1988. In Aldon it was stated (at paragraphs 25 and 30 to 31) that section 40 is not a freestanding provision which reclassified criminal damage but a procedural provision which followed on from the categorisation process in terms of value by the justices and which affects the crown court sentencing powers. Accordingly, the court hearing the earlier proceedings in March erred in its reliance on

I also accept Mr Boyd's submission that even if S.127 had applied, the March magistrates fell into error. The occasions on which a charge in a magistrate's court can be dismissed are dealt with in S.9 and S.15 of the 1980 Act. S.9(2) provides that the court "after hearing evidence and the parties shall convict the accused or dismiss the information". S.15(1) provides:

To these scenarios, the position where the prosecution does appear but offers no evidence or is not able to proceed, must be added. The consequence is that a magistrates' court may only dismiss a charge after hearing evidence, where the prosecution offers no evidence or is not able to proceed and the case is not adjourned, or where the prosecution does not appear at the time and place appointed for trial.

In the circumstances of this case, therefore, the previous court had no jurisdiction to dismiss the charge brought against the respondent. The authorities also establish; see West and Ex parte Harrington, that a decision to dismiss in these circumstances is a nullity. In Ex parte Harrington Lord Roskill stated at page 750 that the jurisdiction of a magistrates court is founded on statute and the statutory provisions determine whether or not justices acted within or without their statutory duty. At 751 to 753, he stated that the effect of a failure to comply with a statutory duty meant that the decision was a nullity.

The effect of these decisions is also that a dismissal in such circumstances does not amount to an acquittal for the purposes autrefois acquit because the defendant would not be "in jeopardy" a second time. Such jeopardy on a second occasion only arises after a lawful acquittal on the merits. The phrase "on the merits" distinguishes between a case in which the court is in a position to convict but does not do so and the position where the court is unable to consider the question of conviction or acquittal because it has no power or because it thinks it has no power to adjudicate: Donaldson LJ in R v Swansea Justices, Ex parte Purves (1981) 145 JD 252 at 254 a statement approved in R v J [2013] 2 Cr App R 10 by Sir John Thomas President of the Queens Bench Division at 45. Accordingly, there was no acquittal on the merits in this case. On 20 March the respondent was never in jeopardy or in peril of being convicted because the justices were under the misapprehension that they didn't have jurisdiction to try the case because the offence charged was summary only and fell outside the statutory time limit. As Mr Boyd observed in his written submissions, the respondent could not have been convicted by a court that thought it had no power to convict her.

Finally, the restricted circumstances in which a court can refuse to allow a prosecution to proceed on the ground of abuse of process, do not, in my judgment, apply. In Holmes v Campbell (1998) 162 JP 655, the Divisional Court was considering informations laid by the Environment Agency against two respondents alleging that they had caused river pollution. The proceedings were adjourned following their pleas of not guilty. Subsequently their representatives informed the environmental agency that they would be pleading guilty but when the case was listed, the prosecutor failed to attend and the magistrates who had been invited to exercise their powers under section 15 of the 1980 Act dismissed the information. The court later decided that the prosecution's reasons for failing to attend were acceptable. Summonses were served in respect of the same offence and the magistrates then decided to stay proceedings as an abuse of process. This court allowed an appeal by the prosecutor. It held that the magistrates could not have prevented all the fresh proceedings from going ahead on the basis of autrefois acquit because there had not the been an acquittal on the merits and the conditions necessary for a stay on the grounds of an abuse of process were not established. In delivering the judgment of this court, Mr Justice Smedley stated at 622:

The decision in March to dismiss was for the reasons I have given, one made without jurisdiction and thus unlawful and a nullity. The prosecution on 7 May was not therefore attempting to go behind a previous reasonable decision to dismiss the charge. Accordingly, the reinstated proceedings could not be characterized as an abuse of process.

For these reasons, in my judgment, the District Judge was wrong not to permit the prosecution to proceed on the new charge. It follows that if my Lord would agree, the appeal will be allowed and the case remitted to a differently constituted magistrate's court to determine the proceedings in accordance with the correct legal procedure in the light of the guidance in this judgment.

In the light of my conclusion on the central issue in this appeal, it is not strictly necessary to answer the other two questions posed by the District Judge. I will, however, do so briefly. Was the District Judge wrong to invite the prosecution to re-list the case before the original Bench for clarification? The position as to what happened on the previous occasion when the matter came before the lay justices, appeared to be clear from the court register and the file. It is, of course, possible that both the register and the file erred and in those circumstances a request for clarification is understandable. But since whether the March bench had dismissed the charge or simply failed to proceed with it, did not affect the power of the later court to hear the proceedings when correctly advised, seeking clarification would not affect the outcome.

I pause to say that in this case it is important that the prosecution have alerted the District Judge (Magistrates' Court) to its contentions as to why the court was able to proceed with what is referred to as the reinstated charge. In situations in which magistrates' courts often have to deal with unrepresented parties, whether the magistrate's court is a District Judge (Magistrates' Court) or whether lay justices advised by a professional legal adviser, it is incumbent on the prosecution to take the steps which they rightly did in this case.

In my judgment, the prosecution are to be commended for doing so. They would have been subject to criticism had they not done it because of the possible element of surprise. As it happens, Mr Boyd's submission that clarification would have served no purpose in these circumstances after a true appreciation of the law is correct but if clarification can be obtained quickly, there is no harm in seeking that. But since the lay justices had in fact dismissed the charge, unless they were authorised by statute to revisit the matter, their function was over. So beyond clarifying what their decision was, it is difficult to see that they had any role. They had performed their duty. They had no further authority. Using the succinctness of Latin, they were functus officio. Were they authorized by statue to revisit the matter? There is no suggestion in the case stated that they were.

The only provision to which this court has been referred is S.142 of the 1980 Act to which Mr Boyd drew our attention. That empowers a magistrate's court to reopen a case only where a person has been convicted. Mr Boyd did not identify any other possible source of power nor have I been able to. Accordingly, I do not consider that the magistrates who heard the case in March would have had authority to revisit the matter. It follows that although seeking clarification as to what the order was cannot be criticized in the circumstance of this case, whatever the outcome of this such clarification would not affect matters. Accordingly, it could be said that it was not necessary to seek that clarification and because they had no power to reopen the case. The consequence is that the answer to this question is "yes".

The final question is whether the District Judge was wrong to indicate that the High Court had jurisdiction to deal with the error of law whereas she did not. It follows from my conclusion that the District Judge was wrong not to permit the prosecution to proceed on the new charge that the answer to this question was also "yes". It is true that this court has jurisdiction to deal with errors of law by the magistrates who first heard a case. But the decision in West shows that where that court acted without jurisdiction, a later magistrates' court also has power to inquire into the status of the earlier proceedings. The supervisory and appellate jurisdiction of the Administrative Court and the Divisional Court should be regarded as a remedy of last resort and should not be invoked where there is an alternative speedier and often cheaper remedy.

In view of the terms of the penultimate sentence of paragraph 6 of the case stated, I add that I do not consider that the question of jurisdiction is affected by whether the judges involved are a lay bench or a District Judge (Magistrates' Court) judge.

MR JUSTICE WILKIE: I agree.

MR BOYD: Thank you my Lord. I have no applications.