Charlson, R (on the application of) v Guildford Magistrates' Court & Ors

Where the Crown Prosecution Service has discontinued proceedings, magistrates considering a private-prosecution summons should not require special circumstances or apply the Crown Prosecution Service’s evidential and public-interest tests. They should consider whether the allegation discloses an offence, whether its ingredients are prima facie present, limitation, jurisdiction, the informant’s authority and any other relevant facts.

A different approach applies where a Crown Prosecution Service prosecution remains in progress. In that situation, magistrates should ordinarily be slow to issue a summons for a concurrent private prosecution unless special circumstances exist.

The claimant sought judicial review of three magistrates’ decisions concerning proposed private prosecutions arising from the death of his son in a road accident. The Crown Prosecution Service had discontinued its prosecution against the interested party.

Guildford Magistrates first refused to issue a summons because there were no special circumstances or new evidence. South Western Magistrates later withdrew summonses after learning of that refusal. Guildford Magistrates then declined to re-list the matter. The central issues were the proper approach to a private-prosecution summons after discontinuance and the validity of the three decisions.

1. Applicable approach. Under Magistrates' Court Act 1980, section 1(1), the magistrates’ discretion must be exercised consistently with the principles in R v Metropolitan Magistrates ex parte Klahn [1979] 1 WLR 934. They should consider whether the allegation concerns an offence known to law, whether its essential ingredients are prima facie present, limitation, jurisdiction, the informant’s authority and any other relevant circumstances.
2. Discontinued Crown prosecution. A private prosecution need not satisfy the evidential or public-interest tests in the Code for Crown Prosecutors. Section 23(9) of the Prosecution of Offenders Act 1985 permits fresh proceedings after discontinuance. Accordingly, magistrates should not require special circumstances before issuing a private-prosecution summons merely because the Crown Prosecution Service previously discontinued proceedings.
3. Ongoing Crown prosecution distinguished. R v Tower Bridge Magistrates' Court ex parte Chaudhry [1994] QB 340 concerned the oppressive prospect of concurrent prosecutions while a Crown Prosecution Service prosecution remained in progress. It did not establish the wider rule stated in Stones’ Justices Manual. In that different situation, magistrates should ordinarily be slow to issue a summons absent special circumstances.
4. Application and orders. The first Guildford decision was quashed because it applied the special-circumstances requirement. The South Western decision was quashed because the earlier refusal was treated as determinative and the Klahn matters were not considered. The third decision was quashed because it assumed that the first decision was correct and did not consider the merits. The Guildford Magistrates were directed, if requested, to reconsider whether summonses should be issued. The claimant’s costs were ordered out of Central Funds.

This was a first-instance judicial review claim. Permission had been granted by Newman J. The Administrative Court quashed the three impugned magistrates’ decisions and directed reconsideration by Guildford Magistrates if requested.