Barons Pub Company Ltd, R (on the application of) v Staines Magistrates' Court

A prosecutorial decision cannot ordinarily be reviewed by a magistrates’ court except through an abuse of process application. That remedy is exceptional. Where a prosecution policy has been considered but applied wrongly, the defendant must show oppression beyond the ordinary consequences of prosecution. A policy breach alone does not require the prosecutor to abandon the case. Only exceptionally arbitrary conduct may itself make continuation oppressive. Prosecution and statutory hygiene notices may be used as alternative or cumulative enforcement measures where the relevant policy and enforcement hierarchy have been considered.

The claimant operated food businesses and was prosecuted for alleged breaches of the Food Hygiene (England) Regulations 2006. It challenged the decision to prosecute after a food hygiene inspection found serious alleged deficiencies at one pub. The magistrates’ court refused to stay the prosecution as an abuse of process.

The Administrative Court considered whether the prosecutorial decision could be challenged otherwise than through abuse of process, whether the local authority had followed its enforcement policy, and whether oppression had to be shown beyond the decision to prosecute.

1. Claim dismissed. The magistrates’ court had no power to review a prosecutorial decision except through an abuse of process application. Such an application should ordinarily be made in the criminal proceedings. Judicial review would be available only where that procedure could not be used, and such cases were likely to be very rare.
2. The Council’s enforcement policy, prepared under the statutory Code of Practice, established a hierarchy of enforcement measures. The Council had followed that hierarchy. The inspecting officer had given warnings and an opportunity to clean the premises, including voluntary closure. The evidence supported the view that serious hygiene breaches remained after the informal warning.
3. Prosecution and statutory hygiene notices were alternative measures which could also be used together. The Council was entitled, on the evidence, to choose either course. The prosecution report, authorisation and subsequent explanation showed that the prosecuting officers had considered the Enforcement Policy and that the decision was not arbitrary.
4. It was unnecessary to decide the oppression issue because the policy had been followed. Nevertheless, commencing a prosecution contrary to policy was not automatically oppressive. Where the policy had been considered but wrongly applied, oppression beyond the ordinary consequences of prosecution would be required. An entirely arbitrary decision might exceptionally make continuation oppressive without more.
5. The prosecution could resume. Matters concerning later cleaning and the conduct of the premises were matters for the merits and mitigation. Prosecution reports were ordinarily confidential and should not generally be disclosed to the defence.

The claimant sought judicial review of District Judge Workman’s refusal to stay the prosecution as an abuse of process. The Administrative Court dismissed the claim and held that the prosecution could resume.