Crown Prosecution Service, R (on the application of) v Smith

Magistrates must hear the prosecution evidence and the parties before dismissing an information, as required by Magistrates' Court Act 1980, section 9(2). A dismissal made in breach of that statutory duty is a nullity. Section 142(1) cannot be used to reopen or rescind the dismissal because its power is limited to dealing with an offender. Once a charge has been dismissed after the prosecution has offered no evidence, the court is functus officio and reopening the matter may give rise to autrefois acquit.

The Crown Prosecution Service appealed by way of case stated from the North Northumbria Magistrates' Court's acquittal of Alan Smith. He had been prosecuted for allegedly breaching a non-molestation order. The magistrates dismissed the information without hearing evidence or allowing full representations, concluding that the prosecution had not established that the order was in force.

The case stated asked whether that procedure was lawful and whether section 142 of the Magistrates' Court Act 1980 could rectify the dismissal.

1. The appeal was allowed. The case was remitted to the justices for a trial of the information.
2. Section 9(2) of the Magistrates' Court Act 1980 requires the court, after hearing the evidence and the parties, either to convict the accused or dismiss the information. The magistrates accepted that they had not followed that procedure.
3. Following Re Harrington [1984] AC 743, magistrates cannot dismiss an information before hearing the parties and any evidence properly placed before them, save where the prosecution tenders no evidence. A final decision made in breach of section 9(2) is a nullity.
4. Section 142(1) was unavailable. The words “an offender” limit the power to vary or rescind a sentence or other order made when dealing with an offender. They cannot refer to a person against whom there is no allegation or whose information has been dismissed.
5. The clear authority of R (Application of O) v Stratford Youth Court [2004] EWHC 1453 (Admin) also precluded reopening the case. Where the prosecution has offered no evidence and the charge has been dismissed, the court is functus officio and a further hearing may give rise to autrefois acquit.
6. The second question was answered in the negative.

• North Northumbria Magistrates' Court: dismissed the information and acquitted the respondent on 19 November 2015.
• High Court (Administrative Court): allowed the appeal by way of case stated and remitted the case to the justices for a trial of the information.