Ben Whitehead v Westminster Magistrates' Court

When deciding whether to issue a summons for a private prosecution, a magistrate must ask whether the alleged offence is known to law and whether its essential ingredients are prima facie present. The inquiry requires more than mere arguability. It must address evidential sufficiency, including any unlawfulness which is an ingredient of the alleged offence. The court is not required to ignore the fact that a proposed defendant is a police officer exercising police powers. Where the evidence does not establish unlawful conduct, the threshold is not met. A brief ruling may be sufficient for an ordinary, uncomplicated summons application if it identifies why the application fails and permits effective review.

Ben Whitehead sought judicial review of the refusal by Deputy Senior District Judge Ikram at Westminster Magistrates’ Court to issue a summons or warrant for the arrest of Police Sergeant Robbie Jephcott. The proposed private prosecution arose from Sergeant Jephcott’s traffic stop and arrest of Karl Carpenter, whose conduct had been recorded on video and whose witness statement was obtained by Mr Whitehead.

Mr Whitehead advanced two grounds. He argued that the evidence met the prima facie threshold for assault, false imprisonment and public-order offences, and that the judge had wrongly treated him as having an improper motive. The court considered whether the evidential threshold had been correctly applied and whether the refusal was lawful and rational.

1. Claim dismissed. The magistrate was entitled to refuse the summons because the evidence did not establish a prima facie case of unlawful conduct, an essential ingredient of each alleged offence.
2. The test in Kay requires the magistrate to consider whether the allegation is an offence known to law and whether its essential ingredients are prima facie present. If so, a summons should generally issue unless compelling reasons, such as vexatiousness, abuse of process or impropriety, justify refusal. The prima facie inquiry is more demanding than mere arguability. It includes at least consideration of whether the evidence could properly support a conviction.
3. A detailed written ruling is not required for an ordinary and uncomplicated summons application. The reasons must identify why the application failed and enable a reviewing court to see that the law was correctly directed.
4. For the assault allegation, the prosecution had to establish apprehension of immediate unlawful violence. The officer’s use or threatened use of force had to be assessed in the context of police powers. The court considered the powers to use reasonable force in preventing crime or effecting lawful arrest under section 3 of the Criminal Law Act 1967, section 117 of the Police and Criminal Evidence Act 1984, and the arrest power in section 24 of that Act. On the evidence, the officer had reasonable grounds to suspect driving offences, and the unlawfulness element was not made out.
5. False imprisonment required an unlawful arrest. The public-order allegations likewise required proof of unlawfulness. The judge was entitled to conclude, after considering the videos and transcript, that the evidence of unlawful force, threats or behaviour was absent or weak.
6. The court rejected the submission that the prima facie test was equivalent to the arguability test for judicial-review permission. It left open whether the threshold is less demanding than the CPS Full Code Test, because that issue was unnecessary to the decision.
7. Ground 2 concerning improper motive was not decided. The claim failed on Ground 1, and the court made no final finding on the suggested application of section 13 of the Legal Services Act 2007.

The claim was a judicial-review challenge to the refusal of a summons application by Westminster Magistrates’ Court. The Administrative Court dismissed the claim.