What is the jurisdiction of a magistrates’ court to consider applications for a stay of a prosecution on the grounds of abuse of process? The simple and widely accepted answer comes from R (Bennett) v Horseferry Road Magistrates’ Court [1994] 1 AC 42 [1993] 3 W.L.R. 90 – namely, that the magistrates can hear arguments under the “first limb” of Bennett (that a fair trial could not take place), but not arguments under the “second limb” (that any trial, even if fair, would undermine the integrity of the system). However, a lifeline is thrown to defendants in summary proceedings by a line of wholly contrary case law concerning judicial review challenges to decisions to launch summary proceedings. This article suggests how practitioners might deal with this conflict, unless and until it is resolved by binding authority from a higher court.

It is now well established that abuse of process arguments fall into two “limbs”:

  • That a fair trial is no longer possible, for example where evidence which could assist the defence has been destroyed, or the matter has received extensive prejudicial publicity;
  • That it would undermine the integrity of the criminal justice system to allow the case to be tried, even if the trial itself would technically be fair.

The second limb refers to the courts’ supervisory role, to ensure that the rule of law is upheld in spirit as well as to the letter. In Bennett, the House of Lords considered which court, if any, had the jurisdiction to hear an argument under the second limb. It held that the power as exercised by magistrates “should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures”. Or in other words, magistrates had no jurisdiction to hear second limb arguments – only the Crown Court or High Court could do that.

Arguments under the second limb often include where the charging decision was made in breach of some express or implied representation, or in contravention of published policy. It is in that context that a line of case law inconsistent with the seminal ruling in Bennett has developed in the last decade.

“a line of case law inconsistent with the seminal ruling in Bennett has developed in the last decade”

In a number of cases, the High Court has commented that judicial review (“JR”) challenges to a decision to prosecute will only succeed in exceptional circumstances, it being fundamentally the role of the prosecutor to decide whether to charge and with what, and the role of the criminal courts to determine criminal matters on their merits. Those wishing to mount any challenge have an alternative remedy and should, says the High Court, make an abuse of process argument in the criminal court instead. This point was made explicitly by the High Court in Moss & Son Ltd v CPS [2012] EWHC 3658 (Admin) [2013] L.L.R. 40 at paragraph 23, even though in that case the proceedings in question were summary. This view has been echoed by the Court of Appeal in R v A [2012] EWCA Crim 434 [2012] 2 Cr. App. R. 8, a case concerning the appropriateness of a decision to prosecute the victim of domestic violence for falsely retracting a true rape allegation. The Court of Appeal stated at paragraph 81: “As to judicial review, there can, we suggest, be very few occasions indeed when an application for permission by or on behalf of a defendant should not be refused at the outset on the basis that an alternative remedy is available in the Crown Court. This is the appropriate tribunal for dealing with these questions on the rare occasions on which they may arise.” That is uncontroversial law as far as the Crown Court is concerned. But interestingly, the Court added, “Precisely the same considerations apply to a case involving summary trial.”

In the same vein, in R (Barons Pub Company Ltd) v Staines Magistrates’ Court and Runnymede Borough Council and Director of Public Prosecutions [2013] EWHC 898 (Admin) [2013] L.L.R. 510 the Divisional Court considered the circumstances in which a Magistrates’ Court could consider the appropriateness of a prosecutorial decision (in that case, there had been protracted communication between the defendant pub company and the prosecution before the charging decision was made). The Court observed that a challenge to the decision to prosecute must always be made in the criminal proceedings, unless there is some reason why it cannot be so made. The way in which it can be made in magistrates’ court proceedings, the Court said, is by an abuse of process application (paragraph 36).

However, in neither R v A nor Barons Pub did the Court refer to the established principle in Bennett that the magistrates are restricted to considering “first limb” abuse of process arguments only. Nor did they refer to the case of Nembhard v DPP [2009] EWHC 194 (Admin), which reaffirmed that second limb challenges cannot be made before magistrates (“regrettably” in the view of Maurice Kay LJ at para 21). In Nembhard, it was held that prosecution proceedings could either be adjourned pending a judicial review of the decision to prosecute, or proceed to conclusion and an appeal by way of case stated made following any conviction. Both courses have disadvantages: the former has the disadvantage of causing delay; the latter course, while allowing the magistrates’ court to make findings of fact that would assist the High Court, also causes delay, in addition to the stigma and punishment that flow from a conviction following a trial that arguably should never have taken place.

An appeal by case stated was the course followed in the summary proceedings in Woolls v North Somerset Council [2016] EWHC 1410 (Admin); [2016] 2 WLUK 69. In that case, representations had been made by the prosecutor that the claimant would not be prosecuted. The District Judge refused to hear an abuse of process argument and proceeded to hear the trial on the basis that an appeal by way of case stated could be brought in the event of conviction. The Divisional Court approved this course, although the line of inconsistent case law in Barons Pub and R v A was not cited to the court.

What are the practical consequences of this conflict? First, defence practitioners should be alert to the possibility of Barons Pub being deployed to persuade a magistrates’ court that it can consider an abuse of process argument on the second limb – although the prosecution are likely to counter by relying on the House of Lords decision in Bennett, and may argue that the Court of Appeal’s view in R v A was obiter: as things stand Bennett may be determinative of the question, unless it can be distinguished somehow on the facts. Secondly, unless and until this conflict is considered by a higher court, it is not at all clear what course should be taken by those facing summary proceedings who seek to challenge the charging decision, where the resulting trial would not technically be unfair. Should an attempt be made to distinguish Bennett and argue second limb abuse of process in the magistrates’ court, thus honouring the warnings of the High Court in decisions such as Barons Pub and Moss that such challenges are rarely appropriate for the High Court? Or should a pre-trial JR application be made to the High Court, thus following the course suggested in Nembhard, and honouring Bennett itself? Care must be taken not to allow a JR application to become time-barred. The other course, of allowing the trial to proceed and then applying to the Court to state a case after any conviction, may be attractive to the High Court, but is very unattractive to (and hardly fair on) the defendant who might face the distress and initial expense of a prosecution that is later found to offend the integrity of the entire system. In a commercial context the reporting of a criminal trial, even in the magistrates’ court, can cause reputational damage even if an accused business person is eventually vindicated in the High Court many months later, accompanied then by possibly little or no reporting.

We suggest that the fairer way through is for the High Court to hear a judicial review of the charging decision prior to any trial – with any delay being the price to pay for preventing an arguably unfair prosecution from proceeding. Given the Court’s comments in Nembhard, that approach will be easier in cases where there are few issues of fact for the magistrates to determine and if successful it will avoid a conviction from ever being recorded against the accused. Practitioners should note that such a challenge may require an application for an interim quashing order of the summons or requisition, to prevent the magistrates’ court from being seized of the matter. If the High Court refuses to entertain the challenge then it may still be possible to present the defence arguments in the summary proceedings and / or on an appeal by case stated.