Suleman v Leeds District Magistrates' Court

When considering whether to issue a summons for a private prosecution, a magistrates’ court exercises a judicial function. It must be satisfied that the information alleges an offence known to law and meets applicable procedural requirements, including any time limit and jurisdictional or authority requirements. A summons should ordinarily be issued unless there is a compelling reason not to do so, such as abuse of process or other impropriety.

The court must not apply the Crown Prosecution Service test of whether there is a realistic prospect of conviction. The sufficiency of the evidence and prospects of success are generally matters for trial. The fact that allegations may also be more appropriately addressed in family proceedings is not, without more, a compelling reason to refuse a summons where the information arguably discloses criminal offences.

The claimant sought permission to bring judicial review proceedings concerning a decision by District Judge Mallon on 28 July 2016 refusing to issue summonses for a proposed private prosecution of his former wife. The proposed allegations concerned perjury and offences under the Protection from Harassment Act.

The magistrates’ court had treated the matter as if summonses had been issued, although none had in fact been issued. The stated substantive reason for refusal was that the matters were more properly addressed in the Family Court. Permission had previously been refused on the papers by Kerr J. This was the claimant’s renewed application.

The issues were whether the refusal was arguably unlawful and whether the former wife was a person directly affected by the grant of a judicial review remedy for the purposes of Part 54 of the Civil Procedure Rules.

1. Permission granted. The claimant had shown an arguable case that the refusal to issue summonses was unlawful. The judicial review would be directed to the magistrates’ court’s decision, not to the procedural confusion caused by the erroneous recording of summonses.
2. The laying of an information starts a private prosecution under section 29 of the Criminal Justice Act 2003. Under section 1 of the Magistrates’ Courts Act 1980, a justice may issue a summons when an information alleges that a person has committed, or is suspected of having committed, an offence.
3. Applying Gateshead Justices, ex p Tesco Stores Ltd [1981] QB 470, the decision to issue a summons is judicial rather than merely administrative. The court must be satisfied that the information alleges an offence known to law and complies with relevant requirements concerning time limits, jurisdiction and authority. There is also a residual discretion, but refusal ordinarily requires a compelling reason such as abuse of process or other impropriety.
4. The realistic-prospect-of-conviction test used by the Crown Prosecution Service does not govern the issue of a summons for a private prosecution. The sufficiency of evidence, prospects of success, adequacy of particulars and limitation points could be addressed at a later stage where appropriate, and were not the reasons given for refusal in this case.
5. The fact that the allegations might more appropriately be addressed in the Family Court was arguably not a compelling or proper reason to refuse the summonses where the information arguably disclosed criminal offences.
6. The former wife was not directly affected by the grant of a judicial review remedy. A successful claim would merely return the matter to the magistrates’ court for reconsideration, and she would only be affected if a summons were subsequently issued. She was therefore not an Interested Party under Rule 54.1(2)(f) of the Civil Procedure Rules.

Directions were made for the substantive judicial review, and a transcript was ordered at public expense.

• High Court (Administrative Court): Permission had been refused on the papers by Kerr J on 4 May 2017. On renewal, HHJ Belcher granted permission and directed the substantive judicial review proceedings.