Crown Prosecution Service, R (on the application of) v Gil

The hearsay regime introduced by the Criminal Justice Act 2003 applied to committal proceedings after its commencement. An unrepealed notice provision referring to repealed statutory provisions had therefore ceased to have practical effect. Notice requirements were instead governed by Rule 34 of the Criminal Procedure Rules 2005, which applied to committal proceedings and could be dispensed with, varied or shortened where justice required. A discharge founded on the obsolete provision was unlawful. Abuse of process is exceptional and requires either that a fair trial cannot take place or that it would be unfair to try the defendant. Where neither condition is met, a prosecution should not be stopped merely because earlier committal proceedings ended in discharge.

The Crown Prosecution Service sought judicial review of two decisions of a lay magistrate in the City of London Magistrates’ Court. The magistrate discharged the interested party on charges 1 to 9 because the prosecution had not complied with section 5D of the Magistrates’ Courts Act 1980. She later discharged her on charge 10, treating further proceedings as an abuse of process because that charge had previously been discharged.

The prosecution contended that the 2003 hearsay regime applied and that the earlier notice provision had no continuing effect. It also challenged the abuse-of-process ruling. The central issues were the applicable hearsay notice regime, the proper consequence of non-compliance, and whether the subsequent prosecution was abusive.

1. The judicial review application succeeded. The decisions discharging the interested party on charges 1 to 9 and on charge 10 were quashed.
2. The Criminal Justice Act 2003 (Commencement No 8 and Transitional and Saving Provisions) Order 2005 brought the 2003 hearsay regime into operation for the relevant committal proceedings. This followed the approach in Bradley [2005] EWCA Crim 20 and the analogous decision in H, which held that the hearsay provisions applied after commencement on the same basis.
3. Section 5D of the Magistrates’ Courts Act 1980 remained unrepealed, but had ceased to have potency because sections 23 and 24 of the Criminal Justice Act 1988 had been repealed. It was therefore otiose to require notice referring to those provisions. The magistrate erred in law by relying on section 5D.
4. Rule 34 of the Criminal Procedure Rules 2005 applied to committal proceedings. It required notice of hearsay evidence but permitted the court to dispense with notice, alter its form, or shorten or extend the time limit. Applying the overriding objective, a reasonable magistrate would be virtually certain to dispense with or abbreviate the notice requirement because the evidence had long been known to the defence and the allegations were serious.
5. Abuse of process intervention is exceptional. It is justified where the defendant cannot receive a fair trial or where it would be unfair to try the defendant. R v Horsham Justices ex parte Reeves [1980] 75 Cr App R 236 was materially different because disputed evidence had not previously been heard and evaluated in the present case. A fair trial remained possible and a trial would not be unfair.
6. The proper course was not remittal. The contingent application for a voluntary bill of indictment could proceed forthwith.

The application arose from two decisions of the City of London Magistrates’ Court dated 7 June and 6 July 2005. Permission for judicial review was granted on 20 December 2005. The Administrative Court quashed both decisions.