London Borough of Newham, R (on the application of) v Stratford Magistrates' Court [2004] EWHC 2506 (Admin)

Case No CO/189/2004[2004] EWHC 2506 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 12th October 2004
Strand
London WC2
B E F O R E:
MR JUSTICE DAVIS
Between
THE QUEEN ON THE APPLICATION OF MAYOR & BURGESSES OF LONDON BOROUGH OF NEWHAMClaimant-v-
Between
STRATFORD MAGISTRATES' COURTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S A H ROY (instructed by London Borough of Newham) appeared for CLAIMANT for The DEFENDANT was not represented
J U D G M E N T
[1]MR JUSTICE DAVIS: This is a claim for judicial review, permission having previously been granted on a consideration of the papers, the proceedings being commenced on 15th January 2004. The claimant may be styled the London Borough of Newham, and the named defendant is the Greater London Magistrates' Courts Authority; although in reality the challenge is to a decision of the district judge sitting in the Stratford Magistrates' Court.[2]The background is this. The London Borough of Newham which, amongst other things, is the trading standards authority for the relevant area, applied in around March 2003 to have 14 summonses issued against a Mr Zahid Qureshi. It was said that Mr Qureshi had committed various offences in the course of February, March and April 2002, the essence of which, in summary, was that he had been party to selling cars on false pretences, if I may put it that way. Amongst other things, the allegations were that the odometers had been tampered with, and similar such allegations.[3]The way in which the informations were laid by the London Borough of Newham was (as is, I gather, its general practice) to submit the draft of the summons which they considered could appropriately be issued by the Magistrates' Court. It is well established that a decision whether to issue a summons pursuant to information laid involves the exercise of a judicial function (see R v Brentford Justices ex parte Catlin [1975] QB 455.[4]In the present case, the magistrates on 21st March 2003 notified the London Borough of Newham that they were not prepared to issue the summonses in the form suggested by the London Borough of Newham. The composite summons submitted by the London Borough of Newham had, in fact, contained 14 draft charges. The summons, of course, was addressed to Mr Zahid Qureshi. The first charge in the draft alleged that on or about 16th March 2002 he did by deception, namely by a false statement that a Honda Accord LSi motorvehicle registration mark S839 RKH had travelled approximately 28,000 miles whereas it had travelled approximately 106,362 miles by 13th December 2001, dishonestly obtained payment in the sum of £4,795 belonging to Mr and Mrs Bentley with the intention of permanently depriving the said Mr and Mrs Bentley of it, contrary to section 15(1) of the Theft Act 1968. That, therefore, was a charge of obtaining property by deception, pursuant to the provisions of section 15 of the 1968 Theft Act.[5]The second charge on the draft summons contained a similar charge of obtaining property by deception in the case of another car, an Audi A4, sold on 17th February 2002, where, again, the deception was said to be a statement that it had travelled approximately 22,000 miles when, in truth, it had travelled over 130,000 miles. The third charge contained a similar charge of obtaining property by deception: the car in this case being said to be a BMW 5, supplied on 1st April 2002, allegedly with a false statement as to the true mileage.[6]Charge number four on the summons related to the same vehicle and the same sale with regard to that vehicle, namely the Honda Accord mentioned in the first charge. Charge four reads as follows:
"On or about the 16th day of March 2002 you did apply a false trade description to goods, namely a Honda Accord LSi motor vehicle registration mark S839 RKH, by means of the odometer that the vehicle had travelled approximately 28,000 miles whereas it had travelled approximately 106,362 miles by 13th December 2001, contrary to section 1(1)(a) of the Trade Descriptions Act 1968."
Charge five contained the corresponding allegation by reference to section 1(1)(a) of the Trade Descriptions Act 1968 with regard to the sale of the Audi A4 on 17th February 2002. Charge six likewise contained the corresponding charge by reference to section 1(1)(a) of the Trade Descriptions Act 1968 with regard to the sale of the BMW 5 on 1st April 2002.[7]The seventh charge on the summons contained an allegation that:
"On or about 1st April 2002 you did apply a false trade description to goods namely a BMW 525 TDS SE motor vehicle registration mark N130 DNO by means of service records that the vehicle had travelled approximately 85,360 miles whereas it had travelled approximately 166,340 miles by 19th March 2002, contrary to section 1(1)(a) of the Trade Descriptions Act 1968."
The eighth charge:
"On or about 1st April 2002 you did apply a false trade description to goods namely a BMW 525 TDS SE motor vehicle registration mark N130 DNO by means of service records that the vehicle had been serviced by the Hughenden Motor Co of High Wycombe which was false, contrary to section 1(1)(a) of the Trade Descriptions Act 1968."
The seventh and eighth charges therefore related to the same sale of the same BMW vehicle as mentioned in the third charge; but in this case there were allegations of false service records as to how many miles the vehicle travelled and further allegations of false records as to servicing. There were a number of other charges also contained on the draft summons which, as I have said, comprise 14 in number: some of those further charges being alleged offences under the Fair Trading Act 1973.[8]On 21st March 2003 the Clerk to the Magistrates' Court wrote to the London Borough of Newham, in effect refusing to issue summonses in the forms of 1, 2, 3, 7 and 8 as per the informations laid by the London Borough of Newham. The note provided by the Clerk read as follows:
"I have consulted District Judge Simms. The summonses numbers 1, 2, 3, 7 and 8 are refused. Too many offences on the same facts are alleged with regard to summonses 1, 2 and 3. The court is not inclined to accept that the facts of 7 and 8 amount to a false trade description but, in any event, it will not allow proceedings of two false descriptions for the same vehicle. Return to prosecutor for amendment."
[9]The London Borough of Newham was aggrieved at this and on 9th April 2003 wrote a letter to the Clerk to the Stratford Magistrates' Court, querying the basis for this refusal to issue summonses in the form as previously sought by the London Borough of Newham, and explaining why, in the opinion of the London Borough of Newham, it was necessary that those charges should be included in the summonses issued against Mr Qureshi. On 29th April 2003 the Clerk replied stating that he had referred the matter to District Judge Simms and reporting her views. It is stated in the letter as follows:
"It is agreed that, for example, offences 1, 4 and 9 can be described as separate offences in relation to vehicle S839 RKH but the fact that a number of offences can be constructed out of different aspects of the same facts is not necessarily a reason for charging all those offences. In the view of the District Judge the justice of the case can be fully met by granting process on offences 4, 5, 6 and 9 to 14. The charges of deception appear to add nothing, nor does the allegation of a second false trade description in regard to an article already falsely described."
It is not necessary to read more.[10]In cases of this kind, by virtue of section 19 of the Trade Descriptions Act 1968, no prosecution for an offence under that Act is allowed to be commenced after the expiration of three years from the commission of the offence, or one year from its discovery by the prosecutor, whichever was the earlier. In addition, there were, as I was told by Mr Roy, counsel appearing for the London Borough of Newham before me, further time limits as to the issuing of a summons after the initial informations were laid. In the event, and because of the concerns about time limits, the London Borough of Newham considered that it was constrained to accept the issue of summonses in the form sanctioned by the district judge. A summons containing nine charges altogether was eventually issued on 16th July 2003, addressed to Mr Qureshi.[11]I should add that I was told at the hearing before me today that the matter was in due course committed to the Crown Court for sentence, Mr Qureshi having pleaded guilty. Earlier this year he was sentenced, as I was told, to a total of six months imprisonment on the various matters.[12]Notwithstanding the issue of the summons in that form, the London Borough of Newham maintained its complaint about the previous decision of the district judge. As I was told by Mr Roy, the concern was then, and remains, that the ordinary practice adopted, as he says, for good reason, by the London Borough of Newham in cases of this kind, was being restricted by the decision of the district judge. They had concerns that a similar view might be taken in similar such cases where the London Borough of Newham again sought to lay informations.[13]An oral hearing was requested before the district judge but she maintained her stance. Her reasons were then communicated by a decision letter dated 21st October 2003, which decision letter is the subject of the challenge in this claim for judicial review. In the course of that letter, this was stated, the letter being signed by the Clerk to the Magistrates' Court:
"The issue of a summons is a judicial act. It is at the discretion of the issuing authority on considering the information or informations. There is no compulsion to issue process for all or any matters sought, though there should be reasons for refusal. The instant proceedings relate to the marketing of three motor vehicles, to each of which a false trade description had been applied. Fourteen summonses were requested. The principal offences were (for each) -- (1) Applying a false trade description. (2) Supplying goods to which a false trade description has been applied. (3) Obtaining the sale monies by deception (the false trade descriptions). There is duplicity in the matters 2 and 3 and the only difference is that dishonesty played a part in the purchaser's transaction. If the facts are proved the result is that an offence is committed and the defendant's conduct may be aggravated by the facts but the number of offences which can be drawn from the same facts is not aggravating. In the exercise of her discretion the District Judge considered the criminality of the defendant's conduct was adequately met by the summonses which were issued, and those relating to section 15 of the Theft Act 1968 and the summonses referring to additional false trade descriptions to the same vehicles should remain refused."
[14]The London Borough of Newham remained dissatisfied with that decision and its reasoning and in due course, after further correspondence, issued this claim form. I should add that subsequently an acknowledgment of service was put in. That briefly said that the matter was one within the discretion of the district judge concerned, and also appended to it a witness statement of the district judge. In essence the witness statement repeated the points made in the previous correspondence. Amongst other things, this was said:
"In deciding whether to grant the process sought I looked at the total criminality of the defendant's behaviour and came to the conclusion that it was possible to deal with it adequately by allowing the issue of summonses on the offences as at 7(b) and (c) above, [that is applying a false trade description and supplying goods to which a false trade description had been applied, and in respect of one vehicle] but withholding process on 7(a) and (d) above. [I add that those were obtaining the sale price by deception and applying two further false trade descriptions]. The defendant's criminality was not increased by the number of offences which could be formulated on the same set of basic facts. I kept in mind that the powers of the court on summary conviction extended to 12 months imprisonment as a maximum however many offences are prosecuted, and in addition, or in the alternative, fines totalling £30,000 could be imposed in respect of the Trade Description offences. There is also power to commit for sentence on summary conviction. I therefore concluded that justice would not be hindered by allowing a reduced number of offences to be charged."
[15]The grounds of claim made on behalf of the London Borough of Newham, and fortified by the written and oral submissions of Mr Roy on its behalf, in essence comes to this. First, it is submitted that while it is indeed the case that the magistrates do have a discretion to refuse to issue summonses pursuant to informations laid, that is a discretion which should only ordinarily be exercised in circumstances where the issue of such summons would involve an abuse of the process of the court, or some other impropriety.[16]For that proposition there is ample authority. It is sufficient to refer to R v West London Metropolitan Stipendiary Magistrate ex parte Klahn [1979] 1 WLR page 933, per Lord Widgery CJ. That, I accept, sets out the general position. Indeed, the matter is, I think, usefully summarised in Stone's Justices Manual 2004 Volume 1, at paragraph 1422 where this is said under the heading "Issue of Summons or Warrant":
"When an information has been laid, a justice or the justice's clerk must apply his mind to the information, and go through the judicial exercise of deciding whether or not a summons or a warrant ought to be issued by him. His initial concern will be to see that the information discloses an offence known to law, that is he has territorial jurisdiction to act, that the date of the alleged offence is within any limitation of time, and that any necessary consents to prosecution have been obtained. When considering whether to issue a summons, the justice or justice's clerk has jurisdiction to refuse to issue a summons if to issue a summons would be vexatious and improper, even if there were evidence of the offence."
That, I think, is a convenient general summary of the applicable legal position and I adopt it for the purposes of this case.[17]Mr Roy then went on to submit that broadly speaking it was for the prosecuting authorities to decide what charges they wished to bring, and it was for them to make the initial decision how to present their case in terms of the charges sought to be laid. In the present case he fortified that generalised proposition by making the observation that the charges set out as charges 1, 2 and 3 in the draft summons provided to the Magistrates' Court, were offences distinct from those contained in charges 4, 5 and 6. The first group of charges (that is to say 1, 2 and 3) involved offences of obtaining property by deception, whereas the second group of charges (that is to say 4, 5 and 6) were alleged offences under section 1 of the Trade Descriptions Act 1968. He said that there was a clear distinction between those kinds of offences: amongst other things, because in order to make good a charge of obtaining property by deception, the prosecution must prove actual dishonesty whereas that is not necessarily so for an offence under section 1 of the Trade Descriptions Act 1968.[18]Furthermore, he pointed out that there was a real practical reason in many cases why prosecuting authorities may wish to include these kinds of charges, at least in the alternative. That is because a prosecution under section 1 of the Trade Descriptions Act 1968 can only succeed where the application of the false trade description to any goods, or the offer to supply any goods to which a false trade description is applied, can only be made out where that application or offer is by a person who does that in the course of a trade or business; and it is by no means unknown for defendants in cases of this kind to deny that they were acting in the course of a trade or business. That, therefore, is a good practical reason why charges might be framed, at all events in the alternative, by reference to 15(1) of the Theft Act 1968.[19]The third point Mr Roy made is with regard to charges 7 and 8, contained on the draft summons, as submitted to the magistrates. Mr Roy's point here is that although the same car (that is to say the BMW 5) was involved as was included in charge 3 and charge 6, there were here offences of a different kind. Charge 7 referred, in shorthand terms, to service records which were false as to the amount of miles travelled, and charge 8 referred to service records that were false as to how often the vehicle had in fact been serviced by a particular garage. His point is that charges 7 and 8 are distinct both from each other and from the other charges (which, in essence, related to the falsification of the odometer).[20]Overall, submits Mr Roy, in so far as the district judge referred to there being duplicity, there was, in the sense that duplicity is used in the criminal courts, nothing of the kind. On the contrary, he submits, there was sound reason for formulating these various charges in this way. Mr Roy did accept that in practice the local authority would not at trial have pursued charges 1, 2 and 3 cumulatively with charges 4, 5 and 6: in practice, he said, at any trial if there had been one, the matter would have been conducted on an alternative basis. But, for the reasons already set out, he submitted that there were sound reasons for pursuing the matter initially in this way.[21]The respondent was not represented by counsel at the hearing before me, notwithstanding that an acknowledgment of service had been put in. Further, although Mr Qureshi was notified of these proceedings, he has taken no part whatsoever in them. I was initially concerned to be told that the criminal proceedings have now been disposed of, and Mr Qureshi convicted, in the sense that it seemed to me that this present claim might be said to be entirely academic: and, if so, it would not merit the exercise of consideration and the granting of discretionary relief. However, as I have explained, Mr Roy informed me that the London Borough of Newham is very anxious to have clarification of the position in this particular case just because it is considered that it may well be that a similar point may arise hereafter; and the Borough needs to know the practice which it hereafter ought to adopt in laying informations in cases of this kind. On the whole, therefore, I think it has been right to consider this matter substantively. Mr Roy does not seek a quashing order of any kind, simply because that would now be pointless. But he does seek the appropriate declaratory relief.[22]I have come to the conclusion that this claim is well-founded. The first point is that by the decision letter of 21st October 2003, the Magistrates' Court was, in effect, asserting that it had a discretion as to the issuing of summonses on consideration of the information or informations laid before it, and that there was no compulsion to issue process for all or any matters sought. In my view that is true in so far as it goes. But it is misleading in so far as it suggests that the magistrates have an unfettered and unlimited discretion in this regard. On the contrary, as it seems to me, the general principle is that the magistrates ought to issue summonses pursuant to informations properly laid, on the face of it, unless there are compelling reasons not to do so, most obviously if an abuse of the process or impropriety is involved. I do not see how here an abuse of process or impropriety can be said to be involved in the form of the informations laid by way of the draft summons by the London Borough of Newham.[23]The reasons sought to be given in the decision letter of 21st October 2003, and as amplified by the district judge's subsequent witness statement dated 16th April 2004, involved assertions that there was duplicity between those charges involving supplying goods to which a false trade description had been applied and those charges involving the obtaining of the sale monies by deception: it being noted that the only difference was that dishonesty played a part in the purchaser's transaction. But, as I have indicated, that is not duplicity in the sense understood in the criminal courts. There is a clear distinction between the charges of obtaining property by deception and the charges by reference to section 1 of the Trade Descriptions Act.[24]As Mr Roy has submitted, and as I accept, there is a clear rationale for the London Borough of Newham including these two groups of charges intended to be pursued in the alternative, depending upon how the facts actually turned out at trial. After all, amongst other things the London Borough of Newham could not know what stance the defendant, Mr Qureshi, might adopt. If he came up with potentially cogent evidence that he had not been acting in the course of trade or business, but if there had indeed been dishonest deception involved, it would have been positively necessary for the London Borough of Newham to have included the charges under section 15 of the Theft Act 1968 if true and full justice was to be achieved.[25]There are further reasons why a decision to include these various groups of charges can be justified. The maximum sentence that can be imposed for offences under the Trade Descriptions Act 1968 amounts to a fine not exceeding the statutory maximum and imprisonment on conviction on indictment for a term not exceeding two years' imprisonment in addition to any fine that might be imposed. There may be cases where the London Borough of Newham may think that to restrict the offences charged to those under the Trade Descriptions Act 1968 might not give rise to the appropriate sentence in total, having regard to the limits on the court's jurisdiction for offences of this kind under the Trade Descriptions Act 1968.[26]It seems to me, therefore, that the objection as to the charges under 1, 2 and 3 of the draft summons was not a justifiable objection on the part of the Magistrates.[27]So far as the rest of the letter is concerned (and so far also as that point is reiterated in the witness statement of the district judge) that seems really to involve the proposition that justice would not be hindered by allowing a reduced number of offences to be charged, and that the criminality of the defendant's conduct was adequately met by the summonses as issued; that is to say, in the form sanctioned by the issuing magistrates. But with all respect, that is not a matter for the Magistrates' Court issuing the summonses. At that stage their function is to decide whether or not it is improper or abusive to issue the summonses pursuant to the informations laid, assuming that all the other appropriate elements (as conveniently set out in Stone's Justices Manual) are satisfied. If these elements are satisfied, and if there is no abuse of process or impropriety involved, it is not the function, in my view, of the Magistrates' Court at the stage of issue to decide how the matter can thereafter most fairly be tried or dealt with: the more so when it simply cannot be known at that stage just what course the proceedings will take or what stance the defendant in question will adopt.[28]In truth, and with all respect to the district judge, the district judge seems to have been adopting at that initial stage, quite wrongly, an approach which might (perhaps) have been adopted in appropriate circumstances by the judge having conduct of the trial of the proceedings. But that is a very different matter altogether. At all events, as I have indicated, there were sound reasons for this draft summons being drafted in the way which it was.[29]The same point can be made by reference to the refusal of the Magistrates to allow charges 7 and 8, as set out in the draft summons, to be issued. Those self-evidently relate to different allegations: because in the one case, with regard to the BMW car, it involved an allegation of falsification of the service records (not an odometer) as to how many miles the vehicle had travelled. In the other case it involved falsification of the service records as to how often the vehicle had been serviced by a garage. Those are distinct charges from the other charges and also distinct charges the one from the other. Again, those were charges which could properly be presented by the London Borough of Newham; and, as I see it, the Magistrates' Court had no entitlement, on a purported discretionary basis, to refuse to issue summonses containing charges in that form.[30]I would make the same point in so far as the district judge asserted that the summonses as sought to be issued involved "overloading". That too was not a matter for the district judge at that particular stage. At that stage it was a matter for the prosecuting authorities; and subsequently it would have been a matter for the judge in charge of the actual proceedings when issued.[31]In the result, therefore, I consider first that the Magistrates' Court wrongly directed itself as to the extent of the discretion available to it in the circumstances; and secondly that it simply gave flawed reasons for its attempt to justify its refusal to issue summonses in the form sought by the London Borough of Newham. In actuality, there were sound reasons for issuing the summons in the form drafted by the London Borough of Newham. There is nothing abusive or improper about informations in that form and no abuse or impropriety would have been involved in summonses in that form being issued accordingly. As I see it, the district judge of the Magistrates' Court had no entitlement, as a purported matter of exercise of discretion, to act as she did in refusing to issue summonses in such form.[32]Mr Roy did also seek to raise some arguments about the duty of magistrates to consult prosecuting authorities in circumstances such as the present; but I do not think it necessary or appropriate to go on that particular point in this particular case. All I would say here is that if a Magistrates' Court is contemplating refusing to issue a summons pursuant to informations laid, it is to be borne in mind that there may well be time limits involving consequence which may, in certain cases, cause a defendant who otherwise would have been prosecuted to evade prosecution altogether.[33]In the circumstances, it seems to me that this claim is well-founded. I am prepared to grant declaratory relief with regard to the decision of the Magistrates' Court to refuse to issue summonses in the form requested, on the footing that its decision to do so was flawed and was not one properly open to it in the circumstances of this case.[34]Is that enough for you to wave around at the Magistrates' Court, Mr Roy?[35]MR ROY: My Lord, it is marvellous.[36]MR JUSTICE DAVIS: It suits you. Maybe not the Magistrates. What about costs?[37]MR ROY: Unfortunately, it seems there is statutory provision which prevents people who have been misused by the Magistrates system from seeking their costs.[38]MR JUSTICE DAVIS: There is another point as well. This case has only been pursued because it suited your clients to do so. Quite apart from that, I am sure no order as to costs is appropriate. They have not adopted a contentious stance, simply put forward their reasons. I think no order as to costs it has to be. Be thankful for small mercies, Mr Roy.[39]MR ROY: Thank you, my Lord.

MR JUSTICE DAVIS: Are these your Stone's Justices?

[41]MR ROY: Yes, my Lord. Thank you.

MR JUSTICE DAVIS: Is there anything else, Mr Roy?

[43]MR ROY: No, thank you, my Lord.

MR JUSTICE DAVIS: Thank you very much.

Cited in 5 later judgments