London Borough of Bromley v Bromley Magistrates Court

A magistrates’ court must act fairly when deciding whether to dismiss an information for non-attendance by the prosecutor. Where the hearing arises unexpectedly following execution of a warrant, the court knows that representation is being arranged and has been told that counsel is expected shortly, a peremptory dismissal without warning or inquiry may fall outside the reasonable range of responses open to it. The court should consider whether a short adjournment or other case-management measure is appropriate. A mandatory order may require the magistrates to hear the information where dismissal was procedurally unfair.

This was a judicial review claim concerning the dismissal of an information by Bromley Magistrates’ Court on 26 November 2009. The information related to an allegation under the Social Security Administration Act 1992. The defendant had been arrested under a warrant and brought before the court unexpectedly.

The prosecuting authority was informed of the arrest and arranged for counsel to attend. The court was told that counsel would arrive at about 2 o’clock. The case was called at approximately 2.10 pm, while counsel was still travelling, and was dismissed for want of prosecution under section 15 of the Magistrates’ Court Act 1980. The central issue was whether that peremptory dismissal was fair and within the reasonable range of responses available to the justices.

1. Claim allowed. The Divisional Court held that the dismissal of the information was unfair and required the justices to hear it.
2. The hearing was not a pre-arranged trial. It came before the court only because the defendant’s warrant had been executed that day. The prosecuting authority and its solicitors could not reasonably have known beforehand that the matter would be listed.
3. The court knew that counsel was being instructed and had been told that counsel would arrive at about 2 o’clock. Counsel arrived only a few minutes after the case was called. In those circumstances, the justices had no proper justification for dismissing the summons peremptorily at about 2.10 pm.
4. Fairness was the overriding consideration. The justices had not warned the prosecuting authority that dismissal was being considered, had not given the prosecutor an opportunity to explain the position, and had not telephoned the solicitors to establish whether counsel remained on the way or to obtain an estimated arrival time.
5. The justices could have considered the powers under section 54 of the Magistrates’ Court Act 1980 to adjourn the matter and release or remand the defendant within the court building pending the prosecutor’s arrival. A short delay would have accommodated the known circumstances and preserved a fair hearing.
6. A mandatory order was therefore issued requiring the justices to proceed to hear the information purportedly dismissed on 26 November 2009. No order for costs was made.

Permission for judicial review was initially refused on the papers. The Divisional Court granted permission on 23 November 2010 and, on 11 February 2011, allowed the claim and issued a mandatory order.