Bahbahani, R (On the Application Of) v Ealing Magistrates' Court

Compliance with the combined sections 17A/20 procedure under the Magistrates’ Courts Act 1980 is a jurisdictional precondition to trying an either-way offence. The procedure must be conducted with the true accused. Conducting it with an impersonator does not confer jurisdiction, even where the court was misled. The resulting conviction, committal and consequential sentence and confiscation proceedings are a nullity. Where the claimant may have been unwittingly deprived of the trial, the case is not treated as voluntary absence or waiver, and the fair-trial requirement is unmet. Section 31(2A) of the Senior Courts Act 1981 applies, but outcome includes the trial process as well as the verdict. Relief was not barred, and delay did not justify withholding it.

The claimant sought judicial review of convictions entered by Ealing Magistrates’ Court in 2014 after his agent had impersonated him during the proceedings. The Crown Court subsequently imposed sentence and made a confiscation order. A stay application was refused, and the Court of Appeal, Criminal Division rejected the substantive grounds of appeal in [2018] EWCA Crim 95, while correcting a technical default term. The present claim raised direct challenges based on non-compliance with the statutory plea and mode-of-trial procedure, absence from trial and unfairness. It also raised delay, the statutory bar on relief and the appropriate costs regime.

1. Disposition. The claim for judicial review succeeded. The convictions and committal for sentence by Ealing Magistrates’ Court, together with the Crown Court’s sentencing and confiscation decisions, were quashed. The summonses remained valid and the prosecution was directed to be relisted.
2. Jurisdiction. Compliance with the combined sections 17A/20 procedure under the Magistrates’ Courts Act 1980 was a precondition to jurisdiction. The court applied the principles in R v Cockshott [1898] 1 QB 582, R v Kent Justice, ex parte Machin [1952] 2 QB 355, R (Rahmdezfouli) v Wood Green Crown Court [2013] EWHC 2998 (Admin) and Westminster City Council v Owadally [2017] EWHC 1092 (Admin). The procedure had to be conducted with the true accused. Correct steps taken with an impersonator were not compliance in respect of the person charged. The court further considered that fraudulent conduct by an accused could not itself confer jurisdiction, although separate offences might arise.
3. Nullity and fairness. Since the statutory procedure was not properly completed in relation to the claimant, the magistrates’ court had no jurisdiction to try, convict or commit him for sentence. The later proceedings based on those decisions were therefore a nullity. The court declined to decide the wider proposition concerning every trial involving an impostor. On the facts, the claimant’s power of attorney authorised the agent to appear for him, not as him. Because actual knowledge of the impersonation had not been established, the case could not be treated as voluntary absence or waiver. The claimant may have been unwittingly deprived of the opportunity to contest the case and give evidence, so the fair-trial requirement was not met. Al-Mehdawi v SSHD [1990] 1 AC 876 was distinguishable.
4. Relief. Section 31(2A) of the Senior Courts Act 1981 applied to judicial review concerning criminal proceedings. Outcome included the trial process and not merely the eventual verdict. It was not highly likely that a lawful trial would have produced an outcome that was not substantially different. In exercising discretion under section 31(6), the court considered delay, prejudice and good administration, including the approach in R (Gerber) v Wiltshire Council [2016] EWCA Civ 84. The substantial consequences of decisions made without jurisdiction outweighed those considerations. Baker v Police Appeals Tribunal [2013] EWHC 718 (Admin) supported quashing an unlawful decision rather than allowing it to have the effect of a lawful one.
5. Costs. The criminal costs scheme under the Prosecution of Offences Act 1985 applied because the claim remained a criminal cause or matter. Following Murphy v Media Protection Services Ltd [2013] 1 Costs LR 16 within its proper limits, a civil costs order was appropriate only in exceptional circumstances. Darroch v Football Association Premier League Ltd [2016] EWCA Civ 1220 did not require a different approach. The factual circumstances were not exceptional, and the application for a defendant’s costs order from central funds was refused.

1. Court of Appeal (Criminal Division). In [2018] EWCA Crim 95, the substantive grounds concerning impersonation, abuse of process and confiscation were rejected. A technical error in the default term for non-payment of the fine was corrected.
2. High Court (Administrative Court). The present judicial review was treated as a direct jurisdictional challenge rather than a collateral attack. The claim succeeded and the relevant criminal decisions were quashed.