LONDON BOROUGH OF BARKING AND DAGENHAM v ARGOS LIMITED

An application for a summons concerning a summary-only offence complies with CrimPR 7.2(3)(b)(i) where the allegation identifies the offence, the date, the legislation creating it and the application date, making the ordinary six-month limit under Magistrates’ Courts Act 1980 apparent. Failure to comply with that procedural rule does not ordinarily deprive the magistrates’ court of jurisdiction or make the summons a nullity.

A Divisional Court may depart from an earlier Divisional Court decision where it is convinced that the decision is wrong, particularly where the earlier ruling was unnecessary, procedurally determined or materially wider than the case required. Advice from another public authority may be relevant to an abuse-of-process application, but it is only one factor, especially where the defendant retains a statutory due-diligence defence.

The proceedings arose from a prosecution of Argos for allegedly selling a knife to a person under 18, contrary to section 141A(1) of the Criminal Justice Act 1988. The prosecutor appealed by case stated against the magistrates’ judge’s conclusion that the summons application was a nullity, relying on Food Standards Agency v Bakers of Nailsea Ltd.

Argos brought a separate appeal concerning the magistrates’ court’s jurisdiction to determine abuse of process and sought judicial review relief asking the Divisional Court to decide that issue. The central questions were whether the application complied with CrimPR 7.2(3)(b)(i), whether any breach invalidated the summons, and whether the prosecution was abusive because Argos had followed advice from Milton Keynes Council.

1. Nullity appeal allowed. The information complied with CrimPR 7.2(3)(b)(i). For a summary-only offence governed by the ordinary six-month limit in section 127 of the Magistrates’ Courts Act 1980, it is sufficient that the information identifies the summary-only offence, states the alleged date, identifies the creating legislation and is dated. It need not expressly refer to section 127.
2. Bakers of Nailsea was not binding on that issue. It concerned a materially different and complex limitation regime, the compliance issue had been conceded, and the wider reasoning was unnecessary to the decision. In any event, the decision was wrong insofar as it extended to the standard section 127 regime.
3. A failure to comply with CrimPR 7.2(3)(b)(i) does not necessarily render the subsequent summons a nullity. The rule is procedural and assists the magistrates’ court in performing its common-law duty to ensure that proceedings are within time. It does not itself ordinarily determine jurisdiction. More complex limitation provisions were left open.
4. The consequence appeal was therefore answered in the negative. The summons was properly issued and the proceedings were to return to the magistrates’ court, subject to the abuse-of-process issue.
5. The court exercised its concurrent jurisdiction to decide the abuse application rather than remit it. Milton Keynes Council’s primary-authority advice did not have the statutory effect of the regime under the Regulatory Enforcement and Sanctions Act 2008, because the Criminal Justice Act 1988 was not then listed in Schedule 3. The court declined to correct the legislative omission retrospectively through rectifying interpretation.
6. The advice remained a factor in assessing whether prosecution would be unfair. It was less potent than an unequivocal promise by the prosecuting authority, the prosecutor had not given the advice, and Argos retained the statutory defence under section 141A(4) of the Criminal Justice Act 1988. The prosecution was not an abuse of process and the stay was refused.

High Court (Queen’s Bench Division, Divisional Court): allowed the prosecutor’s appeal by case stated, answered the stated questions in the prosecutor’s favour, allowed Argos’s jurisdiction appeal by consent, and refused Argos’s application to stay the prosecution as an abuse of process.