Anthony McGill, R (on the application of) v Newcastle Magistrates’ Court

When deciding whether to issue a summons, a magistrates’ court must exercise its judicial discretion by asking whether the case is proper in all the circumstances. The Criminal Procedure Rules provide non-exhaustive examples, not a series of tick-box conditions. A listed example may apply without requiring refusal, and circumstances outside the examples may still justify refusal.

The court must consider the whole of the relevant circumstances and should issue the summons unless there are compelling reasons not to do so. A failure to consider an obviously relevant feature of the case, particularly one going to whether the application is a genuine re-run of an earlier prosecution, is a material public law error.

The claimant sought judicial review of Newcastle Magistrates’ Court’s refusal to issue a summons for an alleged forgery of a Shareholding Entrust Agreement. Earlier private prosecution proceedings against the same defendant concerned alleged forgery of bank documents. Those proceedings were taken over and discontinued by the CPS, whose later victim-review decision addressed only the bank-document allegation and expressly treated the Shareholding Agreement allegation as outside the scope of the earlier proceedings.

The court refused the new summons by reference to Criminal Procedure Rules r.7.2(14)(a) and (f), treating the application as a substantially similar re-run designed to circumvent the CPS decision. The central issue was whether that refusal lawfully assessed the circumstances of the new application.

1. Judicial review allowed. The refusal dated 11 October 2022 was quashed and the application for a summons was remitted for a fresh decision.
2. Issuing a summons under Magistrates’ Courts Act 1980, s.1(1), involves a judicial discretion. The threshold requirements include that the allegation is an offence known to law, its essential ingredients are prima facie present, it is not time-barred, the court has jurisdiction, and the informant has authority to prosecute.
3. Where those requirements are met, the summons should generally be issued unless there are compelling reasons not to do so. The essential question is whether it is a proper case to issue the summons, assessed by considering the whole of the relevant circumstances.
4. CrimPR r.7.2(14) is non-exhaustive. Its examples overlap and guide, but do not replace, the underlying statutory discretion and case-law. A circumstance falling within an example does not automatically require refusal; a circumstance outside the examples may nevertheless justify refusal.
5. For r.7.2(14)(a), the references to the same or substantially the same offence and asserted facts require an ordinary and natural interpretation focused on practical substance rather than relabelling. The application is evaluative and subject to review for reasonableness.
6. The decision-maker materially misunderstood the history. The CPS had not considered, discontinued, or reviewed the Shareholding Agreement allegation. Treating the new application as a circumvention or superficial re-run therefore failed to consider an obviously relevant consideration. That error vitiated the refusal under public law principles.
7. The court directed that the fresh decision be taken in light of the judgment. Costs were reserved for later determination.