Lawton v Fleming-Brown

Procedural non-compliance with the requirement to put an information to an accused does not invalidate proceedings where the accused understood the allegation and suffered no disadvantage. Separate byelaw breaches must be charged in separate informations; combining distinct prohibitions makes the information bad for duplicity. The meaning of conduct prohibited by a byelaw is assessed by a common-sense and natural interpretation, rather than an unduly narrow dictionary definition. Even where a lower court has misdirected itself, a retrial may be refused where the original information was seriously defective, another element of the alleged offence was not proved, and a subsequent byelaw amendment has made the issue academic.

Lawton v Fleming-Brown concerned an appeal from the dismissal by West London Magistrates’ Court of two private informations alleging breaches of byelaws governing Arundel and Elgin Ornamental Gardens. The informations combined the prohibition on playing football or similar games with the prohibition on acts which might damage garden property. The Justices held that the conduct did not amount to playing football or a similar game and that damage had not been proved.

The appeal raised the effect of non-compliance with section 9 of the Magistrates’ Courts Act 1980, the duplicity of the informations, the proper interpretation of the football prohibition, and the appropriate relief.

1. The court rejected the preliminary application to remit the case stated. It was sufficient to enable the appeal to be determined.

2. Section 9 of the Magistrates’ Courts Act 1980 requires the court to ask an accused whether he pleads guilty or not guilty. That procedure was not strictly followed. It was principally for the accused’s benefit, and the respondent knew the allegation, contested it and understood that a trial was taking place. The prosecutor was responsible for ensuring that the information was in proper form before trial. The procedural error did not disadvantage the appellant and did not make the proceedings a nullity.

3. The informations improperly conflated two separate byelaws. Playing football or a similar game and damaging garden property constituted separate and distinct breaches, which should have been charged in separate informations. The informations were therefore bad for duplicity. The court referred to Hunter v Coombes [1963] 1 AER 904.

4. The Justices had taken too narrow a view of football or a similar game by relying excessively on a dictionary definition involving two teams and opposing goals. On a common-sense and natural interpretation, a father and his son kicking a ball were playing football or a similar game. The Justices had misdirected themselves on that issue and reached a conclusion to which no reasonable bench could have come.

5. Despite that error, a retrial would have been inappropriate. The respondent had already been tried on a seriously defective information. The acquittal on the damage limb was not challenged, and a recent amendment to the byelaws had made the meaning of football academic by providing a saving for play between parents and children in defined circumstances. The acquittal was therefore upheld on different grounds, namely the defective information together with the finding that damage had not been proved. The appeal was dismissed.

6. Costs were ordered from Central Funds. The claimant was refused permission to appeal.

• High Court (Administrative Court): the appeal from the decision of Hammersmith & Fulham and Kensington & Chelsea Justices at West London Magistrates’ Court dated 24 November 2005 was dismissed. The acquittal was upheld on different grounds.