Director of Public Prosecutions (DPP) v Bird

A magistrates’ court cannot impose the six-month limitation period in section 127 of the Magistrates’ Courts Act 1980 on an indictable offence merely because it is triable either way or is treated as summary for a particular purpose. A dismissal made without jurisdiction is a nullity and does not constitute an acquittal on the merits for the purposes of autrefois acquit. A later magistrates’ court may therefore inquire into the status of the earlier proceedings and hear the charge. Recommencing proceedings will not ordinarily be an abuse of process where the earlier dismissal was unlawful and the prosecution is not seeking to go behind a reasonable decision on the merits.

The prosecution appealed by way of case stated from a decision of District Judge Matthews at Bristol Magistrates’ Court on 7 May 2015. An earlier bench had dismissed a criminal-damage charge on the basis that it was out of time under section 127 of the Magistrates’ Courts Act 1980. The prosecution issued a further postal requisition for the same alleged offending. The District Judge considered that the original bench might need to clarify whether it had dismissed or stayed the proceedings, indicated that the High Court could address any error of law, and refused to permit the prosecution to proceed. The central issues were whether the original dismissal was effective, whether the respondent could rely on autrefois acquit or abuse of process, and whether the original bench could revisit its decision.

1. Appeal allowed. The case was remitted to a differently constituted magistrates’ court.
2. Section 127 of the Magistrates’ Courts Act 1980 imposes a six-month limitation period for summary offences but does not apply to indictable offences. Criminal damage remains an either-way offence, notwithstanding provisions treating low-value damage as summary for particular purposes. Section 40 of the Criminal Justice Act 1988 is procedural and does not reclassify the offence.
3. The powers to dismiss an information under sections 9 and 15 of the 1980 Act are limited. In the circumstances, the March bench had no jurisdiction to dismiss the charge. Its decision was therefore unlawful and a nullity, applying R v West [1964] 1 Q.B. 15 and R v Dorking Justices, Ex parte Harrington [1984] A.C 743.
4. The dismissal did not amount to an acquittal on the merits. Autrefois acquit requires a lawful acquittal following jeopardy on the merits. Here, the justices believed that they had no power to convict and the respondent was never in jeopardy of conviction.
5. The renewed prosecution was not an abuse of process. The prosecution was not seeking to go behind a reasonable decision on the merits, and the exceptional circumstances required for a stay were absent.
6. The later magistrates’ court could inquire into the status of the earlier proceedings. The High Court’s supervisory jurisdiction is a remedy of last resort where an alternative and speedier remedy exists. The original bench was functus officio and section 142 of the 1980 Act permitted reopening only where a person had been convicted. Clarification of the recorded order could be sought, but it could not affect the legal outcome.

• High Court (Administrative Court): allowed the prosecution’s appeal by way of case stated from the District Judge’s decision of 7 May 2015 and remitted the proceedings.
• Bristol Magistrates’ Court: an earlier bench dismissed the criminal-damage charge as out of time. District Judge Matthews subsequently refused to permit the prosecution to proceed on the renewed charge.