Barry v Birmingham Magistrates' Court

A justice considering an application for a summons must exercise a judicial, though not unfettered, discretion. Relevant matters include whether the allegation discloses an offence known to law, whether its essential ingredients are prima facie present, jurisdiction, time limits, vexatiousness and the whole of the relevant circumstances.

There is no general requirement that an intended private prosecutor first report the matter to the police. That fact may be relevant in a particular case, but treating it as an invariable condition is an error of law.

The claimant sought judicial review of District Judge Qureshi’s refusal on 19 May 2009 to issue a summons against his former wife for alleged harassment. The judge also refused to state a case. The refusal was based on the claimant’s failure to make a prior complaint to the police.

The central issue was whether a person seeking a summons for a private prosecution must first report the alleged offending to the police, and whether the magistrate had properly addressed the statutory ingredients of harassment. Permission had previously been granted by Mr Justice Wynn Williams.

1. The court granted judicial review and directed that the application be reconsidered by the magistrate.

2. Under section 1 of the Magistrates' Court Act 1980, issuing a summons is a judicial function. The discretion is not unfettered. The justice should consider whether the allegation concerns an offence known to law, whether its essential ingredients are prima facie present, the time limit, jurisdiction, whether the allegation is vexatious, and the whole of the relevant circumstances. The justice must be able to inform himself or herself of all relevant facts, following R v West London Metropolitan Stipendiary Magistrate [1979] 1 WLR 933.

3. There is no legal requirement for an intended private prosecutor to approach the police before seeking a summons. Whether the police have been approached may be relevant in an individual case. For example, police refusal to proceed may show that the proposed prosecution is hopeless. But treating prior police reporting as an invariable requirement is wrong in law.

4. The judge could have considered whether the essential ingredients of harassment were prima facie absent. Section 1 of the Protection from Harassment Act 1997 requires a course of conduct amounting to harassment which the defendant knows, or ought to know, amounts to harassment. The objective test in section 1(2) asks what a reasonable person possessing the same information would think. The judge did not address that issue, instead deciding the application solely by reference to the absence of a police complaint.

5. The refusal therefore breached public law principles. Lord Justice Scott Baker agreed with the judgment.

• High Court (Administrative Court) — [2009] EWHC 2571 (Admin): judicial review granted and the matter remitted to the magistrate for reconsideration.
• Magistrates' court — District Judge Qureshi refused to issue the summons on 19 May 2009 and refused to state a case.
• High Court — Mr Justice Wynn Williams granted permission for judicial review in July 2009.