Summary
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.
Factual background
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.
Held
Claim allowed. The Divisional Court quashed the District Judge’s decision and the summonses.
- 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.
- 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.
- 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.
- 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.
- 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.
The court’s approach to earlier authorities
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Appellate history
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.
Key cases cited
26 authorities cited.
- R v Horseferry Road Magistrates’ Court, Ex p Bennett [1994] 1 AC 42
- Virgin Media Ltd, R (on the application of) v Zinga [2014] EWCA Crim 52
- R v Zinga [2012] EWCA Crim 2537
- Stanford International Bank Ltd, Re [2010] EWCA Civ 137
- Daly, R (on the application of) v The Commissioner of Police of the Metropolis & Anor [2018] EWHC 438 (Admin)
- Hart & Ors, R (on the application of) v The Crown Court at Blackfriars & Anor [2017] EWHC 3091 (Admin)
- R (Haigh) v City of Westminster Magistrates’ Court [2017] EWHC 232
- Golfrate Property Management Ltd & Anor, R (On the Application Of) v The Crown Court At Southwark & Anor [2014] EWHC 840 (Admin)
- The Director of Public Prosecutions, R (On the Application Of) v Sunderland Magistrates' Court [2014] EWHC 613 (Admin)
- R (Mills and Mills) v Sussex Police and Southwark Crown Court [2014] 2 Cr App.R. 34
- Rawlinson & Hunter Trustee & Ors, R (on the application of) v Central Criminal Court & Anor [2012] EWHC 2254 (Admin)
- Craik, Chief Constable of Northumbria Police, R (on the application of) v Newcastle Upon Tyne Magistrates' Court [2010] EWHC 935 (Admin)
- Dacre & Anor v City of Westminster Magistrates Court & Ors [2008] EWHC 1667 (Admin)
- Charlson, R (on the application of) v Guildford Magistrates' Court & Ors [2006] EWHC 2318 (Admin)
- London Borough of Newham, R (on the application of) v Stratford Magistrates' Court [2004] EWHC 2506 (Admin)
- R (Salubi) v Bow Street Magistrates’ Court (R (Boucher) v Crown Court at Luton, R (Harmer) v Customs and Excise Comrs, R (Ojutaleyo) v Crown Court at Bournemouth, R (Wanogho) v Bow Street Magistrates’ Court) [2002] EWHC 919 (Admin)
- R v Belmarsh Magistrates’ Court, ex parte Watts [1999] 2 Cr App.R. 188
- R v Crawley [2014] 2 Cr App.R. 1028
- Barry v Birmingham Magistrates’ Court [2010] 1 Cr App.R. 13
- R v Clerk to Bradford Justices, ex parte Sykes and Shoesmith (1999) 163 JP 224
- R v Crown Court at Lewes ex parte Hill (1991) 93 Cr App.R 60
- R v Grays Justices, ex parte Low 1988 3 All ER 834
- R v Bury Justices ex parte Anderton (1987) The Times, April 4
- R v Manchester Stipendiary Magistrate, Ex p Hill [1983] 1 AC 328
- R v Wilson, Ex Parte Battersea Borough Council [1948] 1 KB 43
- R (Dulai) v Chelmsford Magistrates’ Court
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Cases citing this case
10 later cases · 9 positive · 1 caution
Most senior citing decisions:
- Neeraj Handa, R (on the application of) v Westminster Magistrates' Court [2025] EWHC 538 (Admin) followed
- Antony Bates, R (on the application of) v Highbury Corner Magistrates’ Court (District Judge Brennan) [2025] EWHC 184 (Admin) applied
- Ben Whitehead v Westminster Magistrates' Court [2024] EWHC 2868 (Admin) followed
- Anthony McGill, R (on the application of) v Newcastle Magistrates’ Court [2024] EWHC 1207 (Admin)
- Total Sprint Limited v Swale Borough Council [2023] EWHC 2968 (Admin)
- LONDON BOROUGH OF BARKING AND DAGENHAM v ARGOS LIMITED [2022] EWHC 1398 (Admin)
- Food Standards Agency v Bakers of Nailsea Ltd [2020] EWHC 3632 (Admin)
- Defending Christian Arabs, R (On the Application Of) v [2020] EWHC 1850 (Admin)
- Mohamed & Anor, R (on the application of) v London Borough of Waltham Forest [2020] EWHC 1083 (Admin)
- Johnson v Westminster Magistrates' Court [2019] EWHC 1709 (Admin)
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