Medway Ports Authority (Port of Sheerness) v Captain Michael James Ian Fincken

Before dismissing an information because the prosecutor is absent, magistrates must act fairly to both prosecution and defence. Where the hearing was unlisted and the prosecutor had no means of knowing that it would take place, the court must make careful inquiries and give the prosecutor a fair opportunity to attend or arrange representation. A dismissal is not a disciplinary response to prosecutorial default. It is an exercise of judicial power governed by fairness. A short delay, including an opportunity to prosecute later the same day, may be required. Even where a dismissal is quashed, the appellate court may decline to remit the matter if the defendant has acted responsibly and the allegations are stale.

The Medway Ports Authority appealed by way of case stated against the magistrates’ dismissal of two summonses alleging breaches of the Pilotage Act 1987 by Captain Fincken, master of the Rainbow Warrior.

The summonses were dismissed after no prosecutor attended by 11.30 am. The hearing had not been listed, and the prosecuting solicitors first learned that the defendant had surrendered to bail at about 9.55 am. The central issue was whether the magistrates’ decision fell outside the range of reasonable conclusions because they had not fairly considered the prosecution’s position.

1. Determination reversed. The Divisional Court, in a judgment delivered by Lord Justice Moses and agreed to by Mr Justice Wyn Williams, held that the magistrates had not acted fairly in dismissing the informations.
2. Magistrates must hear both sides where possible and must exercise any power to dismiss with fairness to the prosecution and the defence. Dismissal is a matter of fairness, not discipline: R v Swansea Justices and Davies, ex parte DPP [1990] 154 JP 709.
3. This was not a case where a prosecutor knew of the hearing but was delayed or failed to attend. The case was unlisted, and the prosecution had no means of knowing that the defendant would appear that day. The magistrates therefore had to make careful inquiries before dismissing the informations.
4. The prosecution had received no warning that dismissal was being considered and had been led to believe that it should await further contact from the court clerk. It had not been given a fair opportunity to arrange representation. The magistrates should at least have considered hearing the matter later that day, for example after the lunch adjournment.
5. The court did not decide the separate question whether Magistrates Courts' Act 1980, section 15, authorised dismissal where no trial date had been appointed. It preferred to determine the appeal on fairness principles.
6. Under section 28A(3) of the Supreme Courts Act 1981, the dismissal was reversed, but the matter was not remitted. Captain Fincken had acted responsibly, was not at fault, and should not be required to face the stale allegations further. No order for costs was made.

1. Medway Magistrates’ Court: dismissed the informations when no prosecutor attended by 11.30 am.
2. High Court (Administrative Court): reversed the dismissal for procedural unfairness, but directed that the matter should not be remitted.