Kay & Anor, R (on the application of) v Leeds Magistrates' Court & Anor

The issue of a summons is a judicial function. A magistrate must consider whether the allegation discloses an offence, is timely and within the court’s jurisdiction, and whether the prosecutor is authorised. Even where a prima facie offence is shown, the court must consider whether the application is vexatious, abusive or otherwise improper.

A private prosecutor owes the court the obligations of a Minister for Justice. On an ex parte application, the prosecutor must disclose all material information, including matters potentially adverse to the application. A material breach of that duty may justify quashing the summonses. The court may exercise its supervisory jurisdiction where the magistrates’ court fails to address that breach.

The claimants, Scan-Thors (UK) Limited and Martin Kay, sought judicial review of a District Judge’s refusal to dismiss summonses issued on a private prosecutor’s application for fraud offences. They also challenged the Judge’s decision that an abuse of process application should be determined in the Crown Court.

The claimants alleged that the private prosecutor had failed to disclose a settlement agreement, earlier Polish investigations and court decisions, related arbitration proceedings, and his alleged commercial motive. The central issues were the scope of the magistrates’ court’s jurisdiction to reconsider summonses, the private prosecutor’s duty of candour, and the appropriate remedy for non-disclosure.

Claim allowed. The Divisional Court quashed the District Judge’s decision and the summonses.

1. The issue of a summons is a judicial function involving a discretion reviewable by judicial review. Under section 1(1)(a) of the Magistrates’ Courts Act 1980, the magistrate must consider whether the allegation is 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. The court should generally issue the summons if those requirements are met, unless compelling reasons make the application vexatious, abusive or otherwise improper. The magistrate must consider the whole of the relevant circumstances. A proposed defendant has no right to be heard, but the magistrate may seek information, notify the defendant or hear representations where necessary: R v West London Metropolitan Stipendiary Magistrate, ex parte Klahn [1979] WLR 933.
2. A private prosecutor is subject to the same obligations as a Minister for Justice, including the duty to ensure that relevant material is available to the court and defence. Solicitors and advocates conducting the prosecution must act with the highest standards of integrity and fairness.
3. The duty of candour applies to an ex parte application for summonses. The prosecutor must disclose material that may be adverse to the application or relevant to whether the summonses should issue. The undisclosed settlement agreement, Polish investigative and judicial decisions, arbitration history and apparent commercial context were plainly material. Their disclosure could have led to further enquiries, notification of the claimants and a hearing.
4. The District Judge had power to quash the summonses but failed to address the breach of candour. Even applying the test most favourable to the private prosecutor—whether the non-disclosure would have made a difference—the answer was unhesitatingly yes. The High Court could therefore quash the decision and summonses in its supervisory jurisdiction.
5. The magistrates’ court and the High Court have concurrent abuse of process jurisdiction, subject to the limited category identified in R v Horseferry Road Magistrates’ Court ex parte Bennett [1994] AC 42 HL. Magistrates may examine the bona fides of a prosecution and whether it was instituted oppressively or unfairly. Where the issue is novel or complex, it may normally be left for determination in the Crown Court or the High Court.

Any renewed summons application was required to be notified to the claimants at least seven days in advance, with full details and this judgment annexed.

Leeds Magistrates’ Court: The District Judge refused to dismiss or withdraw the summonses and considered the Crown Court the appropriate forum for the abuse of process application.

High Court (Administrative Court): Judicial review was granted. The District Judge’s decision and the summonses were quashed.