Cunliffe, R (on the application of) v West London Magistrates' Court

A witness summons issued under Magistrates' Courts Act 1980, section 97, requires satisfaction of two cumulative conditions: the proposed witness or material must be likely to provide material evidence, and issuing the summons must be in the interests of justice. Material evidence must be relevant to an identified issue and admissible in evidence. Documents sought merely to explore whether a possible defence exists, or requiring expert interpretation before they can become evidence, do not satisfy the test. The applicant must provide material demonstrating likely materiality; the procedure cannot be used as disguised discovery or a fishing expedition. Judicial review may exceptionally be available before the magistrates' proceedings end where the challenge concerns a witness summons and the claimant is not a party with another effective appeal route.

The claimant, the general manager of a company supplying breath-testing instruments, challenged witness summonses requiring him to attend or produce technical documents in three drink-driving prosecutions. The summonses were issued by Hastings, Ealing and West London Magistrates' Courts under section 97 of the Magistrates' Courts Act 1980. The claimant argued that the courts had failed to apply the statutory requirements of materiality and the interests of justice. The West London defendant later pleaded guilty, so that application was withdrawn. The central issues were whether the Administrative Court had jurisdiction to review interlocutory witness summonses and whether the requested technical material was likely to constitute admissible and material evidence.

1. Jurisdiction. The ordinary rule is that judicial review does not control interlocutory decisions in unfinished magistrates' proceedings. Witness summonses form a distinct category. Judicial review may be available where the summons is challenged before the proceedings end, particularly where the claimant is not a party below and has no effective alternative appeal route. The court therefore had jurisdiction.
2. Statutory test. Section 97(1) of the Magistrates' Courts Act 1980, as amended, imposes two cumulative requirements. The justice must be satisfied that the person or material is likely to provide material evidence at the summary trial, and that issuing the summons is in the interests of justice. Both limbs must be considered.
3. Materiality. Material evidence must be relevant to an issue arising on the identified defence and admissible as evidence. Likelihood means a real possibility, though not necessarily a probability. The party seeking production must provide material satisfying the magistrates of that likelihood. A summons cannot be used merely to obtain documents for possible cross-examination, to discover whether a third party has useful material, or as a disguised discovery exercise.
4. Application. The defence statements in the Hastings and Ealing proceedings did not establish how the requested F11 settings, calibration records, service sheets or operating procedures were material to a properly identified defence. The documents would also require interpretation by expert witnesses and were not admissible evidence per se. Their production was therefore a fishing expedition. The magistrates' courts had failed to give proper consideration to the statutory materiality requirement.
5. The Hastings and Ealing summonses were quashed. The West London application was withdrawn. The court declined to address proposed guidance concerning future summonses because the issue had not been argued by an appropriate party.

Not stated in the judgment. The court reviewed witness-summons decisions made by Hastings, Ealing and West London Magistrates' Courts in linked judicial review proceedings.