Law Report: Justices' unreasonable acquittal may be quashed: Regina v Hendon Justices, Ex parte Director of Public Prosecutions - Queen's Bench Divisional Court (Lord Justice Mann, Mr Justice French and Mr Justice Auld), 8 July 1992

Where justices acted unreasonably in dismissing an information for the non-appearance of a prosecutor, an order of certiorari could be granted to quash the apparent acquittal of the defendant, since the justices' decision was a nullity and not in fact an acquittal. However, the more appropriate remedy would be an order of mandamus requiring the justices to proceed with the hearing of the information.

The Queen's Bench Divisional Court granted an application by the Director of Public Prosecutions for judicial review of the decision of the Hendon Justices, on 1 May 1991, to dismiss, for want of prosecution, two informations laid by the Crown Prosecution Service against the defendants, Thomas Peter Harty and Patrick Cash.

The defendants were charged with attempted burglary on 10 April 1991 and after electing summary trial pleaded not guilty and were remanded until 1 May for summary trial at Hendon Magistrates' Court. But the computer printout of that day's cases, sent to the CPS on 30 April, contained no reference to the defendants and showed no cases listed for Court 2 for the morning session.

The CPS made inquiries and was told that Court 2 was not sitting the next morning. In fact, Court 2 was to sit at 10am to hear the defendants' case. But the CPS, relying on the information given, cancelled the attendance of its prosecutor.

Next morning, when the true position became clear, a senior CPS lawyer telephoned to inform the court that he was on his way from an office eight miles away and would conduct the case. He arrived at 11.45am to discover that the informations had already been dismissed for want of prosecution 15 minutes earlier.

Thomas Kark (CPS) for the applicant; Clare Montgomery (Treasury Solicitor) as amicus curiae. The respondents were neither present nor represented.

LORD JUSTICE MANN, giving the judgment of the court, said the justices had acted in purported exercise of the power conferred by section 15(1) of the Magistrates' Courts Act 1980, which provided: 'Where at the time and place appointed for the trial . . . of an information the accused appears or is brought before the court and the prosecutor does not appear, the court may dismiss the information . . .'

The applicant's case was that the justices' decision was so unreasonable that no reasonable bench could have come to it (see Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948) 1 KB 223, at 230, per Lord Greene MR); and that the proper course would have been for the justices to adjourn the trial under section 10(1) to give the prosecution an opportunity to present the evidence which was available to be called.

Their Lordships regretfully agreed. It was implicit in the enactment that a conferred power was not to be exercised unreasonably.

The duty of a magistrates' court was to hear informations which were properly before it. The prosecution had a right to be heard and there was a public interest that, save in exceptional circumstances, it should be heard.

A court's irritation at the absence of a prosecutor at the appointed time was understandable, but it could seldom be reasonable to exercise the power under section 15 where the justices knew that a prosecutor was on his way and the case was otherwise ready to be presented.

Their Lordships entertained the strongest suspicion that the justices had acted so as to punish the inefficiency of the CPS. But any inefficiency was merely apparent and could have been dispelled on inquiry. Moreover, the power conferred by section 15 was not for punitive purposes.

The decision being unreasonable in the Wednesbury sense, the question arose whether the order of certiorari, sought by the applicant, was available. In no reported case had an acquittal by a court of summary jurisdiction been quashed by certiorari.

The justices' decision to dismiss the informations was out with their statutory power and was thus a nullity and could not have sustained a plea of autrefois acquit because there had not been a lawful acquittal: see R v Dorking Justices, ex p Harrington (1984) AC 743, at 752.

Whether the decision was to be described as void or voidable was a question of nomenclature which their Lordships did not find it helpful to answer. Certiorari could go to quash a decision which was a nullity and which by hypothesis was accordingly not an acquittal.

Although this court had decided otherwise in R v Sutton Justices, ex p DPP (1992) 2 All ER 129, the question had not been fully argued then and their Lordships were now convinced that decision was wrong on this point.

However, it would usually be more appropriate to issue mandamus where the prosecution wished to proceed upon the information. Mandamus was, like certiorari, a discretionary remedy.

In exercising discretion, the court would take into account a variety of factors, including the time since the alleged commission of the offence, for the court should be slow to issue mandamus where the case depended on recollection which may have dimmed.

The defendants might feel that they had been acquitted and that they were being put in jeopardy for a second time. On the other hand, a properly presented prosecution for a serious offence should be heard.

Here, the offence was serious, the date of commission was not remote, and the defendants could have no reasonable belief that the dismissal of the charges had been other than a fortuity. Mandamus should issue, requiring the justices to hear the informations according to law.

Paul Magrath, Barrister