Wandsworth v Rashid

Abuse of process is an exceptional control over criminal proceedings. A court should intervene only where abuse is plainly shown, particularly where the complaint concerns a prosecuting authority’s enforcement policy. A clear and settled policy, and a clear breach of it, may be necessary but are not sufficient. The court must not substitute its view of the preferable enforcement option for that of the prosecutor. Nor must the prosecutor justify its decision by addressing every alternative sanction in turn. In assessing abuse, the court should generally consider the evidence available when the prosecution was commenced, rather than late evidence going to the merits or mitigation of the alleged offence. A policy allowing prosecution for all offences may lawfully leave the prosecutor with a choice between prosecution and lesser measures.

The London Borough of Wandsworth appealed by way of case stated from the South Western Magistrates’ Court, which had terminated a prosecution against Mujahinder Rashid for alleged failure to prevent the escape of controlled waste under section 34 of the Environmental Protection Act 1990. The magistrates had refused an amendment to the information and had stayed the proceedings as an abuse of process, holding that the Borough should have considered education or warnings under its Waste Management Enforcement Policy.

The issues were whether the amendment should have been allowed and whether the prosecution decision was unlawful or oppressive because it departed from, or failed adequately to explain its departure from, the policy.

1. Appeal allowed. The magistrates should have permitted the proposed technical amendment under section 124 of the Magistrates’ Courts Act 1980. The amendment merely clarified that JD Sports, rather than Rashid, was the producer of the waste. The court expressed no view on the validity of the charge as amended.
2. Applying the principles in Bennett, the abuse jurisdiction is to be exercised sparingly and is confined, in this context, to matters directly affecting the fairness of the particular trial. Prosecutors ordinarily decide whether to prosecute. The court should intervene only where abuse is plainly established.
3. Evidence of flooding and other mitigating circumstances raised shortly before the magistrates’ hearing should not have been relied on in determining whether the prosecution itself was abusive. Those matters could be considered at trial in deciding whether the offence was proved.
4. The magistrates applied the wrong test by deciding that it would have been reasonable to choose education or a warning. The existence of a preferable alternative does not establish abuse. The Borough was not required to consider each possible enforcement option seriatim before prosecuting.
5. The policy expressly made prosecution available for all offences and identified several relevant factors. The decision to prosecute was not oppressive or abusive on the evidence. Mr Justice Cranston added that a clear and settled policy and a clear breach may be necessary, but are not sufficient, for intervention; the issue was one of Wednesbury unreasonableness. No separate explanation for rejecting alternative enforcement was required.
6. Question (a) was answered “No” and question (d) “Yes”; questions (b) and (c) were not answered. The stay was lifted and the magistrates were directed to proceed, before a differently constituted bench. Costs were awarded to the Borough, subject to assessment if not agreed.

High Court (Administrative Court): allowed the case-stated appeal from the South Western Magistrates’ Court, lifted the stay and directed the magistrates to proceed with the prosecution.