The Director of Public Prosecutions, R (On the Application Of) v Sunderland Magistrates' Court

A magistrate considering whether to issue a summons for a private prosecution must rigorously examine whether the alleged facts disclose an offence known to law and establish its essential ingredients prima facie. The right to bring a private prosecution is important but is not unfettered. A summons must not be issued automatically or in reliance on irrelevant considerations. Where the information is vexatious, or a prior refusal has identified that issue, the court must address the supporting material and, where necessary, seek further information or hear from the proposed defendant. Failure to apply the statutory and legal framework may make the decision Wednesbury unreasonable and amount to an abuse of process.

Private informations were laid against two Crown Prosecution Service employees, alleging misconduct in public office in connection with decisions not to take action on allegations made by the informant. Earlier informations had been refused as vexatious and collateral attacks on CPS decisions. The challenged summonses were nevertheless issued by a lay magistrate at Sunderland Magistrates' Court.

The Director of Public Prosecutions sought judicial review, contending that the informations did not disclose the essential elements of misconduct in public office and were vexatious. The central issues were whether the magistrate had properly exercised the discretion under section 1 of the Magistrates' Courts Act 1980, and whether the summonses should be quashed.

1. The claim succeeded. The court declared that the informations dated 24 December 2013 did not disclose all the elements of misconduct in public office, were vexatious, and quashed them.
2. When deciding whether to issue a summons, the magistrate must ascertain whether the allegation concerns an offence known to law, whether its essential ingredients are prima facie present, whether it is in time, whether the court has jurisdiction, and whether the informant has authority to prosecute. The court followed the guidance in R v West London Metropolitan Stipendiary Magistrate ex parte Klahn [1979] 1 WLR 933.
3. The magistrate must also consider whether the proposed prosecution is vexatious. The magistrate has a residual discretion to hear from proposed defendants. Where a previous tribunal has refused to issue a summons on vexatiousness grounds, another tribunal should not be asked to issue a summons on the same information without being given the relevant supporting material.
4. The common law offence of misconduct in public office requires a public officer, acting as such, wilfully to neglect duty or wilfully to misconduct himself or herself to such a degree as to amount to an abuse of the public's trust, without reasonable excuse or justification. The court applied the definition in Attorney General's Reference (No 3 of 2003) [2005] QB 73.
5. The allegations concerned CPS decisions and correspondence. The CPS has no investigative powers. Its functions and duties under the Prosecution of Offences Act 1985 and the Code for Crown Prosecutors did not support any prima facie case of wilful breach of duty. Proper legal advice and consideration of the documents would have made that clear.
6. The magistrate failed properly to exercise the discretion under section 1 of the Magistrates' Courts Act 1980. The decision to place the informations before a lay magistrate because judicial review of HMCTS was thought likely was irrelevant. The issue of the summonses was therefore unlawful and an abuse of the process of the court.

This was a first-instance judicial review in the Administrative Court. The judgment records that earlier informations had been refused by a magistrates' court, but gives no citation for a separate judgment.