The Department of Works and Pensions v Barton-Harvey

Where a defendant is brought before a magistrates’ court unexpectedly following arrest on a warrant, and the prosecutor cannot attend immediately, dismissal for want of prosecution is not ordinarily appropriate. The proper course may be to release the defendant on bail and adjourn the case to allow the prosecution to arrange representation. The court should consider the circumstances in which the case came before it, rather than treat the absence of an immediately available prosecutor as requiring dismissal.

The Department of Works and Pensions appealed by way of case stated from a decision of the Chippenham Magistrates’ Court. The respondent had been arrested and brought before the court on a warrant, although the case had not been listed for hearing that day. No prosecutor was available immediately, while the respondent had already spent several hours in custody and had personal difficulties involving her young children.

The magistrates dismissed the information for want of prosecution. The central issue was whether they were entitled to do so without allowing further time for the Department to arrange representation.

1. The appeal was allowed. The magistrates were wrong to dismiss the information for want of prosecution in the circumstances.
2. The case had not been listed for hearing that day. It came before the magistrates because a police officer had found the respondent and brought her to court pursuant to the warrant. That circumstance was material to the proper exercise of the court’s discretion.
3. The absence of an immediately available prosecutor did not justify dismissal. Different considerations might arise where the prosecution was conducted by the Crown Prosecution Service, which would normally have lawyers in the vicinity. The Department’s prosecuting department was based in Cardiff, and the investigator present had explained that legal representation could be arranged later that day.
4. Having regard to the magistrates’ findings, including the respondent’s time in custody and personal circumstances, the proper course was to release her on bail and adjourn the proceedings until the prosecution could attend.
5. The appeal was allowed for the reasons given, but the case was not remitted because the likely outcome made that unnecessary. The answer to the stated question was “No”. No order as to costs was made.

• High Court (Administrative Court): appeal by way of case stated allowed from the decision of the Chippenham Magistrates’ Court. The dismissal for want of prosecution was held to be erroneous, but the case was not remitted.