UPDATE: see the important case of Total Sprint Ltd v Swale BC [2023] EWHC 2968 (Admin), a decision of Eyre J on 29.11.23; also Morjaria v Westminster Magistrates' Court [2023] EWHC 2936 (Admin)(Divisional Court; Williams Davis LJ; Stacey J) on 17.11.23.
Where a local authority (Billing Authority) alleges that an (alleged) ratepayer has failed to pay national non-domestic rates ('business rates'), the Billing Authority can make an application by way of complaint to the local Magistrates Court (justices)[1], requesting that the Magistates Court issue a summons under section 51 of the Magistrates Court Act 1980, requiring the (alleged) ratepayer do appear before the Magistrates Court at a given time and place, to answer the Billing Authority's compliant[2]. The purpose of the proceedings being, that in the event that the business rates are found to be properly due but unpaid, the Magistrates Court will impose a business rates liability order on the ratepayer[3]
An interesting issue is whether, when the Billing Authority requests that the Magstrates Court issue the summons, the Billing Authority is under a duty of candour to the justices. And if, so, what does that duty/obligation entail/require, and what might the consequence be for non-compliance.
While there does not appear to be a business rates case on point, there are authorities in relation to criminal prosecutions and summons being requested, that potentially apply by analogy.
Criminal Cases - Duty of Candour when making a Request for a Summons
Justice deciding whether to issue a summons
The leading case in this area is R. (on the application of Kay) v Leeds Magistrates' Court [2018] EWHC 1233 (Admin); [2018] 4 WLR 91 ('Kay'), a decision of the Divisional Court (Gross LJ and Sweeney J), with Gross LJ agreeing (paragraph 44) with Sweeney J's judgment. In Kay, a Mr Karwan (as private prosecutor) laid an information (loosely, the criminal version of a civil 'complaint') before the Magistrates Court, inviting the Magistrates Court to issue summones against: (1) Mr Kay (2nd Claimant); and (2) Mr Kay's company Scan-Thors (UK) Ltd ((1st Claimant); together, the 'Claimants'), for four charges of fraud.
The alleged fraud related to 6 inter-related agreements entered into between Mr Karwan's polish company Adriana, and Mr Kay's company. In essence, Mr Karwan alleged that: (1) Mr Kay's company had made an untrue or misleading representation to Mr Karwan's company, namely that Mr Kay's company '...required a 5% discount upon furniture products that [Mr Karwan's company] was supplying because the ultimate customer, DFS, required such a discount.' (paragraph 9); (2) Mr Karwan's company subsequently '...discovered that the 5% discount representation had been false' (paragraph 10(4)). The summones were issued. Subsequently, the Claimants applied to the Magistrates Court for the summons to be dismissed, alternatively, for the proceedings to be stayed as an abuse of process (paragraph 11). The Claimants had sought dismissal/stay of the summons, on the basis Mr Karwan had failed, in breach of his duty of candour to the court when making his application for the summons, to bring to the attention of the judge dealing with the application for the summs, certain matters (paragraph 3)[4].
The Magistrates Court DJ refused both: (1) to dismissed the summons; and (2) to stay the proceedings as an abuse of process (paragraph 2) - finding that the appropriate venue for the determination of (2) was in Crown Court.
The Claimants applied for judicial review of these two decisions, inviting the Divisional Court to: (a) quash the DJ's decisions; and (b) dismiss the summonses (paragraph 4).
In the Divisional Court, Sweeney J:
(1) set out section 1(1)(a) of the Magistrates Court Act 1980 - which provides that, where an information is laid before it (that a person has, or is suspected of having, committed an offence), the Magistrates Court may issue a summons directing that that person appear before it, to answer the information[5].
[Note: this is the equivolent in the criminal arena, to section 51 of the Magistrates Court Act 1980, in respect to issuing summons against a person against whom a complaint has been a made[6]]
(2) considered, under the subheading 'The issue of a summons' some authorities:
(a) R v Wilson, Ex p Battersea Borough Council [1948] 1 KB 43/R v Manchester Stipendiary Magistrate, Ex p Hill [1983] 1 AC 328; and
(b) R v West London Metropolitan Stipendiary Magistrate, Ex p Klahn [1979] 1 WLR 933 ('Ex p Klahn'), at paragraphs 20 and 21[7], and
(c) some subsequent authorities[8],
before summarising the legal position, as follows, at paragraph 22:
'For present purposes, Ex p Klahn and the above-mentioned authorities establish that, when considering whether to issue a summons:
(1) The magistrate must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction; and whether the informant has the necessary authority to prosecute.
(2) If so, generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so - most obviously that the application is vexatious (which may involve the presence of an improper ulterior purpose and/or long delay); or is an abuse of process; or is otherwise improper.
(3) Hence the magistrate should consider the whole of the relevant circumstances to enable him to satisfy himself that it is a proper case to issue the summons and, even if there is evidence of the offence, should consider whether the application is vexatious, an abuse of process, or otherwise improper.
(4) Whether the applicant has previously approached the police may be a relevant circumstance.
(5) There is no obligation on the magistrate to make inquiries, but he may do so if he thinks it necessary.
(6) A proposed defendant has no right to be heard, but the magistrate has a discretion to:
(a) Require the proposed defendant to be notified of the application.
(b) Hear the proposed defendant if he thinks it necessary for the purpose of making a decision.'
The duties
Sweeney J then addressed, under 2 subheadings, the following:
(1) the duties of a private prosecutor - paragraph 23 (set out in the footnote[9]); and, importantly, for this article,
(2) the duty of candour - setting out what this entails, at paragraphs 23-28 of Kay:
'There is no doubt that the duty of candour applies to an ex parte application for the issue of summonses. In R v Grays Justices, Ex p Low [1990] 1 QB 54, a refusal to dismiss summonses was quashed by this court because of a failure to comply with the duty of candour. Nolan J, who gave the leading judgment, said at p 59:
“There are however two factors in this case which appear to me to take it outside the scope of the authorities to which I have referred. The first is that the court which issued the summons on 8 April was not made aware of the withdrawal of the original summons against the applicant, nor of the circumstances in which that withdrawal occurred. These were considerations which should have been brought to the attention of the court, so that it could consider whether the application for the fresh summons was a proper use of the process, or was merely vexatious. We do not know why the background to the matter was not disclosed to the court, but it is unnecessary to inquire further because it is now established that the withholding of material information is in itself a critical factor in determining whether a summons should be set aside as an abuse of the process of the court: see R v Bury Justices, Ex p Anderton [1987] Crim LR 638, a decision of this court in which judgment was given on 3 April 1987. This decision is not reported and so was not brought to the attention of the justices on September 30, 1987.” (Emphasis added.)
25. More generally, authorities such as R v Lewes Crown Court, Ex p Hill (1991) 93 Cr App R 60; In re Stanford International Bank Ltd [2010] EWCA Civ 137; [2011] Ch 33 ; R v Harriman (Ryan) [2012] EWCA Crim 2537; R (Rawlinson & Hunter Trustees) v Central Criminal Court [2012] EWHC 2254 (Admin); [2013] 1 WLR 1634; R (Mills) v Sussex Police [2014] EWHC 2523 (Admin); [2015] 1 WLR 2199; R (Hart) v Crown Court at Blackfriars [2017] EWHC 3091 (Admin); [2018] Lloyd's Rep FC 98; and R (Daly) v Comr of Police of the Metropolis [2018] EWHC 438 (Admin); [2018] 1 WLR 2221, variously describe the duty as being one of “full and frank disclosure” which necessarily “includes a duty not to mislead the judge in any material way” and which requires the disclosure to the court of “any material which is potentially adverse to the application” or “might militate against the grant” or which “may be relevant to the judge's decision, including any matters which indicate that the issue … might be inappropriate”.
26. As Hughes LJ memorably put it in In re Stanford International Bank Ltd at para 191:
“In effect a prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge.”
27. There are two lines of authority as to what a defendant alleging a breach of the duty of candour must demonstrate to persuade a court that the summons should be quashed. The first, including cases such as R (Rawlinson & Hunter Trustees) v Central Criminal Court and R (Golfrate Property Management Ltd) v Crown Court at Southwark [2014] EWHC 840 (Admin); [2014] 2 Cr App R 12, indicates that it must be shown that the inaccurate and/or non-disclosure by the prosecutor would have made a difference to the judge's decision. The second, including cases such as R (Dulai) v Chelmsford Magistrates’ Court [2012] EWHC 1055 (Admin); [2013] 1 WLR 220; R (Mills) v Sussex Police; and R (Hart) v Crown Court at Blackfriars indicates that it is sufficient if it is shown that the inaccurate and/or non-disclosure by the prosecutor might have made a difference to the judge's decision.
28. Whilst it seems to me that the reasoning in the second line of cases is compelling, for reasons that will become obvious, it is not necessary in this case to express any concluded view as to which line is right.' [words in bold were in italics in original]
Later, Sweeney J said[10],
(1) '...the grant of summonses, typically conducted ex parte, can have far reaching consequences. Compliance with the duty of candour is the foundation stone upon which such decisions are taken. In my view, its importance cannot be overstated.' (paragraph 38)
(2) a DJ has power to power to deal with the breach of the duty of candour by quashing the summons, and that logically, that is the first issue that the DJ should engaged with (paragraph 39)
(3) on the facts in Kay, the private prosecutor (Mr Karwan) had failed to comply with the duty of candour (whatever formulation of the test was used) '- in order to enable the court to properly carry out its duty to consider whether the application was vexatious, an abuse of process or otherwise improper; to consider whether to make further inquiries; to require the claimants to be notified of the application; and to hear the claimants.' (paragraph 37). Would/might the inaccurate and/or non-disclosure have made a difference to the DJ's decision to issue the summons? 'unhesitatingly, "yes"' (paragraph 40). Sweeney J added 'Even if the application had not been refused without more, it would inevitably have resulted in more focussed inquiries, the notification of the claimants, and (in my view) the claimants being heard.' (paragraph 40). As a result of this, 'The DJ undoubtedly had the power to deal with the breach of the duty of candour in this case by quashing the summonses' (paragraph 39). In light of the fact the DJ had not quashed the summonses, the Divisional Court did (paragraphs 41 and 42[11])
Summary
Pausing here to summarise the position so far:
(1) a duty of candour applies where the applications/requests for the issue of summons is made and determined ex parte (i.e. made and determined without formal notice being given to the other party) [Note at least initially, all civil compliant requests for the issue of summons will be without notice to the other party];
(2) Compliance with the duty of candour is the foundation stone upon which decisions to issue summons are taken. The duty of candour's importance cannot be overstated;
(3) the duty of candour is '...one of “full and frank disclosure” which necessarily “includes a duty not to mislead the judge in any material way” and which requires the disclosure to the court of “any material which is potentially adverse to the application” or “might militate against the grant” or which “may be relevant to the judge's decision, including any matters which indicate that the issue … might be inappropriate”' (paragraph 25, Kay)
(4) where there has been a breach of the duty of candour, and the court becomes aware of this (after it has issued the summons) and is considering whether or not to set the summons aside, as an abuse of the process of the court, a critical factor will be whether there has been the withholding of material information. While the law is unsettled as to which line of authority should apply, obiter, Sweeney J said that the second line of authorities was compelling. In other words, obiter, the law is that '...it is sufficient if it is shown that the inaccurate and/or non-disclosure by the prosecutor might have made a difference to the judge's decision' (paragraph 27) - whether to issue the summons or not.
(5) For instance, where the have been previous summons against the same would-be defendant, on the same facts, the court should be told of these. The court's task, upon receiving the latest request for a summons, will be to decide, in light of what has gone before, whether the issue of a fresh summons now, would be a proper use of the process, or was merely vexatious (R v Grays Justices, Ex p Low, Nolan J page 59). As will be apparent, in order for the court to be able to undertake that task, the court will need to have been informed that there had been a previous summon(es) against the would-be defendant, which were later withdrawn, and the circumstances in which that/those withdrawal(s) occurred.
In R (Johnson) v Westminster Magistrates’ Court [2019] 1 WLR 6238 the court emphasised the need for the magistrate to consider the factors set out in Kay. This was referred to, seemingly with approval, in R. (on the application of Mohamed) v Waltham Forest LBC [2020] EWHC 1083 (Admin); [2020] 1 WLR 2929 ('Mohamed'), Dingeman LJ/Elisabeth Laing J in the Divisional Court, at paragraph 22[12].
Siddiqui
This area was considered again by the Divisional Court (Popperwell LJ and Garnham J) in R. (Siddiqui and Another) v Westminster Magistrates’ Court [2021] EWHC 1648 (Admin) [2021] 2 Cr. App. R. 25 ('Siddiqui'), with judgment handed down on 17.6.21. In Siddiqui, the claimants successfully judicially reviewed a Magistrates Court DJ decision to: (1) set aside a summons he had earlier granted; and (2) stay the criminal proceedings that resulted from the issue of that summons (paragraph 1).
The essential facts are that, the claimants (the Siddiqui brothers) claimed Mr Abbasi had defrauded them with some property investments. The claimants brought civil proceeding for fraud etc. which were compromised 22.2.18 in a settlement agreement, wherein Mr Abbasi agreed to pay the claimants £6.5m by 30.4.18 in in full and final settlement of 'All claims' the claimants had against Mr Abbasi. No payment being made, on 9.2.19, the claimants lay before the Magistrates Court 3 charges of fraud by false representation (paragraph 11). The claimant requested a summons be issued, but failed to disclose to the Magistrates Court the settlement agreement (it being common ground that it ought to have been disclosed; paragraph 12). On 9.2.19, the summons were granted and subsequently, Mr Abassi applied for the summons to be set aside '...on the ground that the settlement agreement, which precluded any prosecution, had not been disclosed.' (paragraph 13). As stated, the DJ, after a hearing, set aside the summons and staying the proceedings (paragraph 14).
After considering various statutory provisions/authorities[13]including Kay in particular, Garnham J said, at paragraphs 40-42:
'In Kay, the challenge was to a decision of a district judge to refuse to set aside a summons she had issued on the grounds that the prosecutor had breached his duty of candour in failing to disclose the settlement agreement. We are concerned with the reverse, where the challenge is to the district judge’s decision that the summons should be set aside. In the present case, the district judge says in his ruling that had he seen the settlement agreement, he would not have issued the summons on an ex parte application. That being so, the fact that there are two lines of authority as to the test to be applied when an application to discharge a summons is made to a district judge, as discussed at [27] of Kay, is of no relevance; it is apparent that disclosure of the settlement agreement would, in fact, have made a difference to the district judge’s decision.
The question for this court, therefore, is not did the failure to disclose make a difference to the district judge’s decision to issue the summons, or might it have done so, but should it have done so. Kay makes clear that the district judge is obliged, on such an application, to consider the significance of the material which should have been disclosed; it does not dictate the outcome of that consideration. Insofar as this court is simply reviewing the exercise of a discretion by the district judge, it is exercising a public law reviewing function and applies the Wednesbury standard of review; insofar as the issue raised is a question of law, the court exercises an original jurisdiction.
In my judgment, on the application to set aside the summons in circumstances such as the present, the district judge ought to discharge the summons in any of three situations. First, where the settlement agreement, on its proper construction, precluded a private prosecution; secondly where the breach of the duty of candour was so serious that that breach in itself required the quashing of the summons; and third, where that breach amounts to an abuse of process.' [words in bold are in italics in original]
The Divisional Court in Siddiqui then examined whether any of those situations arose on the facts of the case[14]
Subsequent Criminal Proceedings Not a Nullity - Remediability
Non-compliance with the duty of candour when requesting the issue of a summons, does not render the subsequent criminal proceedings a nullity. Indeed, the earlier deficiency in disclosure accompanying the request, can potentially be remedied later, by the later provision of the relevant material, so that the criminal proceedings are rendered fair. But, if sufficient information could never be provided to the magistrate, the court may quash the decision to issue a summons based on the insufficient information. In Mohamed, the Divisional Court said, at paragraph 24:
'In our judgment if, in breach of the Magistrates’ Court Act 1980, the Magistrates’ Court Rules and the Criminal Procedure Rules, insufficient information has been provided by a prosecutor to a magistrate to justify the issue of a summons, but a summons has in fact been issued, the subsequent criminal proceedings do not become a nullity. This is because, as was decided in Nash v Crown Court at Birmingham the subsequent provision of sufficient information may remedy the earlier deficiency of information so that the criminal proceedings are fair. It is also apparent however that if sufficient information could never be provided to the magistrate the court may quash the decision to issue a summons based on the insufficient information: see R (Johnson) v Westminster Magistrates’ Court.'
Summons Struck Out - Not the Information
Where, because of non-compliance with this duty of candour, the summons is struck out as abusive, this will not necessary be fatal to the underlying information. Further summons(es) may be issued on the underlying information. Highlighting that an invalid (and quashed) summons is not necessarily fatal to the underlying information, in Kay, Sweeney J, at the end of his judgment (paragraph 43), set down 2 pre-requisits, for any further applications (requests) for summonses in the case. Namely, that: (1) the Claimants/would-be defendants were entitled to 7 days prior warning, of the application (request), and (2) a copy of the Divisional Court's judgment in Kay must be attached to the application (request). On the other hand, there may be no ability to apply/request for a further summons, due to some impediment, which will be fatal to the proceedings. In R. v Brentford Justices Ex p. Catlin [1975] Q.B. 455, Michael Davies J (with whom Ashworth J and Lord Widgery CJ agreed) said, at 461:
'...in my view, Dixon v. Wells, 25 Q.B.D. 249 is indeed authority for the proposition that, if there is an error or invalidity about a summons, then it may be fatal to the proceedings against the proposed defendant if it is too late by reason of the expiration of time or any other reason to put the matter right in some other way, and certainly does not justify the submission ... that any fault in a summons is quite incurable and destroys jurisdiction for ever, at least unless a further summons is issued.'
Civil Cases - Duty of Candour when making a Request for a Summons
How far then does the above law in relation to summons requested following the laying of an information (in criminal proceedings), apply across to summons requested following the making of a complaint? In particular, a complaint for unpaid and allegedly due business rates? Without a clear guiding authority, the area remains unsettled and open to doubt. However, in the author's view, its can tentative be said that:
(1) a duty of candour is very likely to exist. Quite simply, it is hard to see why there would not be such a duty upon those requesting a summons be issued against someone, whether making a complaint or laying an information;
(2) that duty of candour likely imposes the same obligations upon the complainant/requestor, mutatis mutandis, as the criminal duty of candour does upon the information layer/requestor;
(3) 5 of the 6 propositions identified in Kay are likely to apply to the duty of candour (proposition (4) not being relevant);
(4) Where civil and criminal arenas may diverge in respect to the duty of candour, is on quite what information/disclosure is sufficient to satisfy the duty. In other words, what level of detail/thoroughness is sufficient to comply with the obligation to provide any material/information which is (a) potentially adverse to the request; or (2) might militate against the grant; or (3) might be relevant to the judge's decision, including any matters which indicate that the issue … might be inappropriate. While issuing a summons will be serious, whether in furtherance of a complaint or information, clearly being summoned to a hearing in respect to a criminal matter, will generally be seen to be more serious, than being summoned to face a complaint that tax is due but unpaid. This may impact what the duty of candour requires. But at the same time, the Court will be undertaking a similar evaluative judgment - should the summons be issued or not. Are there the ingredients there (proposition 1; see Ratford v Northavon District Council [1987] 1 QB 357 and Pall Mall Investments v Camden LBC [2013] EWHC 459 (Admin)[15]) and, even if they are, would be proper to issue the summons? or are there 'compelling reasons not to do so' in light of any evidence that to do so, would be vexatious, an abuse of process, or otherwise improper (propositions 2 + 3).
SIMON HILL © 2022
BARRISTER
33 BEDFORD ROW
NOTICE: This article is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of Chambers or by Chambers as a whole.
[1] In England and Wales, the relevant statutory instrument is The Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989; in particular, there is paragraph 12, entitled 'Application for liability order'. Paragraph 12(1) (so far as presently relevant) and (2) state:
'(1) ...the billing authority may, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable.
(2) The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding.'
Seemingly then, the application for the liability order, to be instituted, must contain:
(1) the making of a complaint to the Magistrates Court; and
(2) the requesting that a summons be issued, directed at the ratepayer, to appear before the court to show cause why the ratepayer has not paid.
For completeness, paragraph 12(1) to (3) read:
'(1) Subject to paragraph (3), if an amount which has fallen due under regulation 8(2) in consequence of such a failure as is mentioned in sub-paragraph (a) of that provision is wholly or partly unpaid, or (in a case where a reminder notice is required under regulation 11 ) the amount stated in the reminder notice is wholly or partly unpaid at the expiry of the period of 7 days beginning with the day on which the notice was served, the billing authority may, in accordance with paragraph (2), apply to a magistrates' court for an order against the person by whom it is payable.
(2) The application is to be instituted by making complaint to a justice of the peace, and requesting the issue of a summons directed to that person to appear before the court to show why he has not paid the sum which is outstanding.
(3) Section 127(1) of the Magistrates' Courts Act 1980 does not apply to such an application; but no application may be instituted in respect of a sum after the period of 6 years beginning with the day on which it became due under Part II.'
Note, the Billing Authority have an election when commencing proceedings for due but unpaid business rates. The election is between bringing proceedings in: (1) Magistrates Court; or (2) the County Court/High Court. This election is made clear in The Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989, paragraph 10, which is entitled 'Interpretation and application of Part III'. Paragraph is 10(2) reads:
'A sum which has become payable to a billing authority under Part II and which has not been paid shall be recoverable under a liability order, or in a court of competent jurisdiction, in accordance with regulations 11 to 21.'
As will be apparent, this article is written in relation to proceedings commenced in the Magistrates Court. It does not relate to/cover proceedings commenced in the County Court/High Court (which are fairly rare).
[2] Section 51 of the Magistrates Court Act 1980 is entitled 'Issue of summons on complaint' and reads:
'Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons to the person requiring him to appear before a magistrates' court to answer to the complaint.'
And typical wording for such a summons, would be:
'Complaint has today been made to me, the undersigned, by the [Billing Authority] that you, being the person/company duly rated and assessed in the respect of the Non-Domestic Rate for the rating area of the said Council, have not paid the amount detailed below which has been correctly demanded from you. The said Council is applying for a Liability Order under Regulation 12(2) of the Non-Domestic Rating Collection and Enforcement (Local Lists) Regulations 1989 and you are therefore summoned to appear before the Magistrates Court at:
[Court address] on [date] at [time], to answer the said complaint.
If you do not appear you will be proceeded against as if you have appeared and dealt with according to the law.'
There is then likely to be details of:
(a) the liability period;
(b) amount said to be due;
(c) any cost claimed;
(d) amount, in total, said to be due;
(e) address of the hereditament in question;
(f) date of summons; and
(g) signature of a legal advisor to the justices at the Magistrates Court.
The summons may be accompanied by a general information sheet.
[3] Two salient provisions in Part III to the The Non-Domestic Rating (Collection and Enforcement) (Local Lists) Regulations 1989 are contained in:
(1) paragraph 10 entitled 'Interpretation and application of Part III'. The paragraph is 10(2), which reads:
'A sum which has become payable to a billing authority under Part II and which has not been paid shall be recoverable under a liability order, or in a court of competent jurisdiction, in accordance with regulations 11 to 21.
(2) paragraph 12, entitled 'Application for liability order'. The paragraph is 12(5), which reads:
'The court shall make the order if it is satisfied that the sum has become payable by the defendant and has not been paid.'
[4] The matters the Claimants alleged Mr Karwan had failed to disclose to the Court, when applying for a summons to be issued, were (paragraph 3 of Kay):
'(1) On 26 July 2012 he had entered into a binding “Settlement Agreement” with the claimants in which he had undertaken not to prosecute them for the matters the subject of the information and summonses.
(2) The very matters raised had (at his request) twice been considered by a Polish regional public prosecutor (over a total period of some five months) and thereafter reviewed by a Polish regional court, each of which (respectively in detailed written justifications and a detailed judgment) had reached the conclusion that there was no evidence of the claimants having committed any criminal offences.
(3) He had only attempted to initiate the Polish criminal proceedings after he had found himself at risk of losing nearly £560,000 in arbitration proceedings between [Mr Kay's company] and [Mr Karwan's company] in Poland, and had attempted to use the fact of the criminal complaint in Poland to bring about a stay of those arbitration proceedings.
(4) [Mr Karwan's company] had lost those arbitration proceedings and had been compelled to pay nearly £560,000 to Mr Kay's company].
(5) At the time of applying for the summonses, [Mr Karwan's company] was the subject of further arbitration proceedings in Poland, in which [Mr Kay's company] was seeking unpaid commission payments and damages in excess of £4m, and that he had initiated the proceedings in this country only after he had found [Mr Karwan's company] to be at risk of that further loss.
(6) It was his intention (as shown by what later happened) to use the fact of the criminal proceedings in this country as the basis of an application to suspend the ongoing arbitration proceedings in Poland, or otherwise to gain a commercial advantage in that dispute.'
[5] Section 1(1)(a) of the Magistrates’ Courts Act 1980, as amended, provides that:
“On an information being laid before a Justice of the Peace that a person has, or is suspected of having, committed an offence, the justice may issue - (a) a summons directed to that person requiring him to appear before a magistrates’ court to answer the information …”
[6] Section 51 of Magistrates Court Act 1980. Section 51 is contained in the first section in Part II 'Civil Jurisdiction and Procedure', in chapter 'Jurisdiction to issue summons and deal with complaints'. Section 51 is entitled 'Issue of summons on complaint' and it reads:
'Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons to the person requiring him to appear before a magistrates' court to answer to the complaint.'
[7] In R. (on the application of Kay) v Leeds Magistrates' Court [2018] EWHC 1233 (Admin) [2018] 4 WLR 91, Sweeney J said, at paragraphs 20 and 21:
'A decision whether to issue a summons is a judicial function involving the exercise of a discretion which is subject to control by judicial review (see eg R v Wilson, Ex p Battersea Borough Council [1948] 1 KB 43; R v Manchester Stipendiary Magistrate, Ex p Hill [1983] 1 AC 328).
In the much-quoted case of R v West London Metropolitan Stipendiary Magistrate, Ex p Klahn [1979] 1 WLR 933, Lord Widgery CJ, said at pp 935–936:
“According to Stone's Justices’ Manual, application for the issue of a summons is made ex parte in private and usually out of normal court hours. It is a step which is preliminary to the institution of proceedings and there is no provision for the giving of notice to a proposed defendant. Once a summons has been issued, the proceedings become and are Crown proceedings: see R v Wilson, Ex p Battersea Borough Council at p 47.
“The duty of a magistrate in considering an application for the issue of a summons is to exercise a judicial discretion in deciding whether or not to issue a summons. As Lord Goddard CJ stated in R v Wilson, at pp 46–47: ‘A summons is the result of a judicial act. It is the outcome of a complaint which has been made to a magistrate and upon which he must bring his judicial mind to bear and decide whether or not on the material before him he is justified in issuing a summons.’
“It would appear that he should at the very least ascertain: (1) whether the allegation is of an offence known to the law and if so whether the essential ingredients of the offence are prima facie present; (2) that the offence alleged is not ‘out of time’; (3) that the court has jurisdiction; (4) whether the informant has the necessary authority to prosecute.
“In addition to these specific matters it is clear that he may and indeed should consider whether the allegation is vexatious: see R v Bros (1901) 85 LT 581. Since the matter is properly within the magistrate's discretion it would be inappropriate to attempt to lay down an exhaustive catalogue of matters to which consideration should be given. Plainly he should consider the whole of the relevant circumstances.
“In the overwhelming majority of cases the magistrate will not need to consider material beyond that provided by the informant. In my judgment, however, he must be able to inform himself of all relevant facts. Mr Woolf, who appeared as amicus curiae, and to whom the court is indebted for his assistance, submitted that the magistrate has a residual discretion to hear a proposed defendant if he felt it necessary for the purpose of reaching a decision. We would accept this contention.
“The magistrate must be able to satisfy himself that it is a proper case in which to issue a summons. There can be no question, however, of conducting a preliminary hearing. Until a summons has been issued there is no allegation to be meet [sic]; no charge has been made. A proposed defendant has no locus standi and no right at this stage to be heard. Whilst it is conceivable that a magistrate might seek information from him in exceptional circumstance it must be entirely within the discretion of the magistrate whether to do so.
“Accordingly in this case, whilst we take the view that the magistrate was in error in holding that he had no power if he wished to do so to hear representations from the applicant, we are of the opinion that he was correct in his view that the applicant had no right to address him, and furthermore was fully justified in refusing to hear counsel on behalf of the applicant."'
Though not quoted by Sweeney J in R (on the application of Kay) v Leeds Magistrates' Court [2018] EWHC 1233 (Admin) [2018] 4 WLR 91, it is interesting to note:
(1) In R v Wilson, Ex p Battersea Borough Council [1948] 1 KB 43 ('Wilson'), Lord Goddard CJ said, at 46-47:
'A summons is the result of a judicial act. It is the outcome of a complaint which has been made to a magistrate and upon which he must bring his judicial mind to bear and decide whether or not on the material before him he is justified in issuing a summons. If a summons is issued it is not, in my opinion, issued on behalf of the local authority but on behalf of the Crown and when it is served, it is served on behalf of the Crown. The result of the service of the summons is that the party on whom it is served is called on to appear before a court and on his appearance he may have an order made against him or may have a penalty, which is a punishment, inflicted on him. The fact that provision is made for the penalty to be paid to the local authority, does not, in my opinion, make any difference. It is not a civil debt which is being recovered but a penalty, and a penalty is only imposed in English law for crime, except under certain Acts of Parliament by which certain persons may themselves sue for penalties, but we need not consider that matter.'
As an aside, Wilson (a Divisional Court case - since there were 3 judges sitting in the Kings Bench Division (Lord Goddard CJ, Humphreys J and Singleton J)) was doubted in the Court of Appeal case of R. v Rose Ex p. London CC 46 L.G.R. 505 (interestingly, consisting of Lord Goddard CJ, Singleton J, Denning J), but on a different point. To explain, in Wilson the court had erroneously not been referred to R. v Braithwaite [1918] 2 K.B. 319, about whether or not the requirement of service of a summons at the place of abode under the Summary Jurisdiction Act was sufficiently fulfilled by service at the place of business.
(2) In R. v Manchester Stipendiary Magistrate Ex p. Hill [1983] 1 A.C. 328, Lord Roskill in the House of Lords considered how the Magistrates Court gains jurisdiction through: (1) the making of a complaint (in civil cases); and (2) the laying of an information (in criminal cases). His speech was limited to written informations and complaints (346). Lord Roskill said, at 342:
'...in their civil jurisdiction, what a magistrates' court have jurisdiction to try is a complaint, and what is required to give them that jurisdiction is that a complaint has been made to them....their civil jurisdiction does not depend upon a summons being issued.'
Further, Lord Roskill said, at 342:
'My Lords, it is of crucial importance to appreciate that the laying of an information is a matter for the prosecution just as the making of a complaint is a matter for the complainant. In each case it is for the prosecutor or the complainant to decide how the information or how the complaint shall be formulated.'
and at 343/343:
'The laying of an information before or the making of a complaint to a justice of the peace or the clerk to the justices to my mind means, in reference to a written information or complaint, procuring the delivery of the document to a person authorised to receive it on behalf of the justice of the peace and the clerk to the justices. The acts of delivery and receipt are ministerial, and I see no reason why the justices of the peace or the clerks to the justices should not delegate to an appropriate subordinate authority to receive the information which the prosecutor desires to deliver. It can sensibly be inferred that any member of the staff in the office of the clerk to the justices authorised to handle incoming post has such authority. Accordingly, once the information has been received at the office of the clerk to the justices, which today in most cases is likely to be at the magistrates' court house, the information will, in my view, have been laid. No more is required of the prosecutor to launch the intended criminal proceedings. Similarly with a complaint - once the complaint is received at the office of the clerk to the justices no more is required of the complainant.
What happens thereafter is not within the province of the prosecutor or of the complainant but of the court. ... if a summons is required the information or complaint must then be laid before a justice of the peace or before the clerk to the justices. This function of a justice of the peace or of the clerk to the justices in determining whether a summons should be issued is a judicial function which must, therefore, be performed judicially. This function, in my view, cannot be lawfully delegated to any subordinate. Section 1(1) of the Act of 1980 states the circumstances in which a justice of the peace (and now the clerk to the justices) may issue a summons and I respectfully agree with what was said by the Divisional Court in Reg. v. Brentford Justices, Ex parte Catlin [1975] Q.B. 455, as to the duties of justices of the peace and of clerks to justices before issuing summonses. Similarly, a justice of the peace or clerk to the justices must act judicially in considering an application for a summons following the making of a complaint: see section 51 of the Act of 1980.'
Later, at 346, Lord Roskill said:
'I would add that it is not necessary for the information to be personally received by a justice of the peace or by the clerk to the justices. It is enough that it is received by any member of the staff of the clerk to the justices, expressly or impliedly authorised to receive it, for onward transmission to a justice of the peace or to the clerk to the justices. The same applies to the making of a complaint.'
(3) In the Divisional Court in Reg. v. Brentford Justices, Ex parte Catlin [1975] Q.B. 455, Lord Widgery CJ said, at 464 (but without express agreement from Michael Davies J or Ashworth J):
'It must, however, be remembered that before a summons or warrant is issued the information must be laid before a justice and he must go through the judicial exercise of deciding whether a summons or warrant ought to be issued or not. If a justice authorises the issue of a summons without having applied his mind to the information then he is guilty of dereliction of duty and if in any particular justices' clerk's office a practice goes on of summonses being issued without information being laid before the justice at all, then a very serious instance of maladministration arises which should have the attention of the authorities without delay.'
[8] In R (on the application of Kay) v Leeds Magistrates' Court [2018] EWHC 1233 (Admin) [2018] 4 WLR 91, Sweeney J said, at paragraph 22:
'We were referred to various authorities decided after the decision in Ex p Klahn, including R v Clerk to Bradford Justices, Ex p Sykes (1999) 163 JP 224; R v Belmarsh Magistrates’ Court, Ex p Watts [1999] 2 Cr App R 188; R (Newham London Borough Council) v Stratford Magistrates’ Court [2004] EWHC 2506 (Admin); 168 JP 658; R (Charlson) v Guildford Magistrates’ Court [2006] EWHC 2318 (Admin); [2006] 1 WLR 3494; R (Chief Constable of Northumbria) v Newcastle upon Tyne Magistrates’ Court (quoted by the DJ); Barry v Birmingham Magistrates’ Court [2009] EWHC 2571 (Admin); [2010] 1 Cr App R 13; R (Director of Public Prosecutions) v Sunderland Magistrates’ Court [2014] EWHC 613 (Admin) and R (Haigh) v City of Westminster Magistrates’ Court [2017] EWHC 232 (Admin); [2017] 1 Costs LR 175.'
[9] In R (on the application of Kay) v Leeds Magistrates' Court [2018] EWHC 1233 (Admin) [2018] 4 WLR 91, Sweeney J said, at paragraph 23:
'It is not disputed that authorities such as R v Belmarsh Magistrates’ Court, Ex p Watts ; R (Charlson) v Guildford Magistrates’ Court (above); R (Dacre) v City of Westminster Magistrates’ Court [2008] EWHC 1667 (Admin); [2009] 1 WLR 2241; Barry v Birmingham Magistrates’ Court; R v Zinga (No 2) [2014] EWCA Crim 52; [2014] 1 WLR 2228; and R (Haigh) v City of Westminster Magistrates’ Court (in which this court concluded that a district judge had been right to require a private prosecutor to put the subjects of an application for summonses on notice) establish that:
(1) Whilst the Code for Crown Prosecutors does not apply to private prosecutions, a private prosecutor is subject to the same obligations as a Minister for Justice as are the public prosecuting authorities - including the duty to ensure that all relevant material is made available both for the court and the defence.
(2) Advocates and solicitors who have the conduct of private prosecutions must observe the highest standards of integrity, of regard for the public interest and duty to act as a Minister for Justice in preference to the interests of the client who has instructed them to bring the prosecution - owing a duty to the court to ensure that the proceeding is fair.'
[10] In R (on the application of Kay) v Leeds Magistrates' Court [2018] EWHC 1233 (Admin) [2018] 4 WLR 91, Sweeney J said he was fortified in his conclusions, by recent amendments (April 2018) to Part 7 of the Criminal Procedure Rules (2020/759). In particular for present purposes, he pointed out, at paragraph 29, that:
(1) the recent amendments were 'intended to reflect the position at common law'; and
(2) Criminal Procedure Rules, Part 7, paragraph (6) '...an application for the issue of a summons...must...include a statement that to the best of the applicant's knowledge, information and belief - ... (iv) the application discloses all the information that is material to what the court must decide.'
[11] Two things here:
(1) Though specific paragraphs (paragraphs 37, 40 and 42) from R (on the application of Kay) v Leeds Magistrates' Court [2018] EWHC 1233 (Admin) [2018] 4 WLR 91 ('Kay') are referred to in the main body of the article, it is considered helpful if paragraphs 37 to 42 are set out here, to give the specific paragraphs context. Paragraphs 37 to 42 read:
37. In view of the decisions in R v Bury Justices, Ex p Anderton and R v Grays Justices, Ex p Low (see para 24 above), and of the various other authorities cited (see paras 25 and 26 above) I have no doubt that when Mr Karwan's lawyers applied on his behalf for summonses to be issued, both he and they were subject to the duty of candour that I have identified. However, the carefully crafted Information which was put forward failed to comply with that duty in each of the respects alleged by the claimants. Whatever the views of Mr Karwan and his lawyers as to the “Settlement Agreement”, it should have been obvious, applying any of the formulations of the test that I have set out (in paras 25 and 26 above) that there was a duty to disclose to the court—in order to enable the court to properly carry out its duty to consider whether the application was vexatious, an abuse of process or otherwise improper; to consider whether to make further inquiries; to require the claimants to be notified of the application; and to hear the claimants.
38. As this case demonstrates, the grant of summonses, typically conducted ex parte, can have far reaching consequences. Compliance with the duty of candour is the foundation stone upon which such decisions are taken. In my view, its importance cannot be overstated.
39. The DJ undoubtedly had the power to deal with the breach of the duty of candour in this case by quashing the summonses. Logically, that was the first issue that she should have engaged with, but she failed to engage with it at all.
40. Whether breach of the duty of candour comes under the broad umbrella of abuse of process, or falls to be dealt with in its own right, applying the test most favourable to Mr Karwan (see para 27 above), namely whether the inaccurate and/or nondisclosure would have made a difference to the judge's decision, my answer is, unhesitatingly, “yes”, Even if the application had not been refused without more, it would inevitably have resulted in more focussed inquiries, the notification of the claimants, and (in my view) the claimants being heard.
Supervisory jurisdiction
41. Even if I am wrong about the DJ's powers, this is in my view, and for the same reasons, plainly an appropriate case for this court to exercise its supervisory jurisdiction, and to quash the DJ's decision and the summonses.
Conclusion
42. For the reasons set out above, I would grant judicial review and quash the DJ's decision and the summonses.'
Note, it is possible for further summonses to be requested. In Kay, Sweeney J said, at paragraph 43
'If there is any further application for summonses in this case, at least seven days before the application is made the claimants must be given full details of it, including of the court at which it is to be made, and this judgment must be annexed to the application.
(2) In R. (Siddiqui and Another) v Westminster Magistrates’ Court [2021] EWHC 1648 (Admin) [2021] 2 Cr. App. R. 25 ('Siddiqui'), the Divisional Court reviewed the case of Kay and gave a summary of what it said. At paragraphs 35 to 40, Garnham J (with whom Popplewell LJ agreed) said:
'35. The consequences of such a breach of duty were discussed in Kay . There the applicants sought judicial review of the decision of the district judge to refuse their application for the dismissal of summons issued against them pursuant to the information laid by a private prosecutor alleging fraud. They referred, in particular, to a settlement agreement between themselves and the private prosecutor which confirmed that each party had “no claim of whatsoever (either civil or criminal law) nature against other parties …”. The grounds of challenge were that the prosecutor had failed to comply with the duty of candour when applying for the summons and that in the light of additional material before the district judge, she had been required to reconsider the question whether the case was a proper one to issue summons. It was said that the district judge had been wrong to find that the Crown Court was the appropriate venue for the determination of the abuse of process issue.
36. At [24], Sweeney J (with whom Gross LJ agreed) observed that:
“24. There is no doubt that the duty of candour applies to an ex parte application for the issue of summonses. In R. v Grays Justices Ex p. Low (1989) 88 Cr. App. R. 291; [1990] 1 Q.B. 54 a refusal to dismiss summonses was quashed by this court because of a failure to comply with the duty of candour.”
37. At [27]–[28], Sweeney J summarised the caselaw as to what a defendant must establish if he is to demonstrate that a summons should be quashed because of a breach of the duty of candour:
“27. There are two lines of authority as to what a defendant alleging a breach of the duty of candour must demonstrate to persuade a court that the summons should be quashed. The first, including cases such as R (Rawlinson & Hunter Trustees) v Central Criminal Court [2012] EWHC 2254 (Admin); [2013] 1 W.L.R. 1634 and R (Golfrate Property Management Ltd) v Crown Court at Southwark [2014] EWHC 840 (Admin); [2014] 2 Cr App R 12 , indicates that it must be shown that the inaccurate and/or non-disclosure by the prosecutor would have made a difference to the judge’s decision. The second, including cases such as R (Dulai) v Chelmsford Magistrates’ Court [2012] 2 Cr. App. R. 19; [2013] 1 WLR 220 ; R (Mills) v Sussex Police ; and R (Hart) v Crown Court at Blackfriars indicates that it is sufficient if it is shown that the inaccurate and/or nondisclosure by the prosecutor might have made a difference to the judge’s decision.
28. Whilst it seems to me that the reasoning in the second line of cases is compelling, for reasons that will become obvious, it is not necessary in this case to express any concluded view as to which line is right.”
38. At [37]–[40], Sweeney J considered the nature of the breach of duty:
“37. In view of the decisions in R v Bury Justices, Ex p Anderton [1987] Crim. L.R. 638 and R v Grays Justices, Ex p Low (see [24] above), and of the various other authorities cited (see [25] and [26] above) I have no doubt that when Mr Karwan’s lawyers applied on his behalf for summonses to be issued, both he and they were subject to the duty of candour that I have identified. However, the carefully crafted Information which was put forward failed to comply with that duty in each of the respects alleged by the claimants. Whatever the views of Mr Karwan and his lawyers as to the ‘Settlement Agreement’, it should have been obvious, applying any of the formulations of the test that I have set out (in [25] and [26] above) that there was a duty to disclose to the court —in order to enable the court to properly carry out its duty to consider whether the application was vexatious, an abuse of process or otherwise improper; to consider whether to make further inquiries; to require the claimants to be notified of the application; and to hear the claimants.
38. As this case demonstrates, the grant of summonses, typically conducted ex parte, can have far reaching consequences. Compliance with the duty of candour is the foundation stone upon which such decisions are taken. In my view, its importance cannot be overstated.”
39. Sweeney J ended his judgment by observing:
“43. If there is any further application for summonses in this case, at least seven days before the application is made the claimants must be given full details of it, including of the court at which it is to be made, and this judgment must be annexed to the application.”
40. In Kay, the challenge was to a decision of a district judge to refuse to set aside a summons she had issued on the grounds that the prosecutor had breached his duty of candour in failing to disclose the settlement agreement.'
[12] In R. (on the application of Mohamed) v Waltham Forest LBC [2020] EWHC 1083 (Admin) [2020] 1 WLR 2929 Dingleman LJ said, a paragraph 22 (under the subheading 'Relevant legal principles relating to the sufficiency of information and the effect of providing insufficient information'):
'The issuing of a summons by a magistrates’ court has been considered in a number of authorities. In R v West London Metropolitan Stipendiary Magistrate, Ex p Klahn [1979] 1 WLR 933 , 935G Lord Widgery CJ noted that “the duty of a magistrate in considering an application for the issue of a summons is to exercise a judicial discretion in deciding whether or not to issue a summons”. In R (Director of Public Prosecutions) v Sunderland Magistrates’ Court [2014] EWHC 613 (Admin) the importance of carrying out a review of what was supplied to the magistrate by the prosecutor was highlighted. At para 23 it was said that “no summons may be issued ‘on the nod’ nor in reliance of an irrelevant fact … the issuing magistrate must be scrupulous to ensure all elements of the alleged offence are established”. In that case it appears that a threat of judicial review had been taken into account when deciding whether to issue a summons and in any event the information in that case did not disclose all elements of the offence of misconduct in public office and it was quashed. In R (Kay) v Leeds Magistrates’ Court [2018] 4 WLR 91 the court emphasised the duty of candour on prosecutors when they apply ex parte for the issue of a summons. It was noted at para 22 that when issuing a summons:
“The magistrate must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction; and whether the informant has the necessary authority to prosecute.”
In R (Johnson) v Westminster Magistrates’ Court [2019] 1 WLR 6238 the court emphasised the need for the magistrate to consider the factors set out in R (Kay) v Leeds Magistrates’ Court.'
[13] In R. (Siddiqui and Another) v Westminster Magistrates’ Court [2021] EWHC 1648 (Admin) [2021] 2 Cr. App. R. 25 ('Siddiqui'), the Divisional Court reviewed various relevant statutory provisions/authorities, under the subheading 'Discussion', from paragraph 30.
At paragraph 32, Garnham J (with whom Popplewell LJ agreed) said:
'32. The circumstances in which a magistrate can decline to issue a summons are limited. In B v Birmingham Magistrates’ Court [2010] 1 Cr. App. R. 13 , the court said:
“7. The issue of a summons is one means of initiating criminal proceedings. Under the s.1 of the Magistrates’ Courts Act 1980 , on an information being laid before a justice of the peace that a person has or is suspected of having committed an offence, the justice may issue a summons directed to that person. The issue of a summons is a judicial function although it does not normally involve conducting any sort of preliminary hearing. It is a task which is often conducted in a straightforward manner. The discretion is not unfettered. The general principle is, as stated in Stone’s Justices’ Manual, that the magistrate ought to issue a summons pursuant to an information properly laid unless there are compelling reasons not to do so where, for example, there is an abuse of process or impropriety involved. There have been repeated statements by judges of this court that although justices ought to protect their process from abuse, they have no power to stay an otherwise regular prosecution.”
33. It follows from Ex p. Klahn and B v Birmingham Magistrates’ Court that if an information is laid before a magistrate that a person has, or is suspected of having, committed an offence, the magistrate or district judge should issue a summons unless there are compelling reasons not to do so where, for example, there is an abuse of process or impropriety by the prosecutor.' [bold added]
Further, at paragraphs 34, Garnham J noted 2 matters agreed between the parties:
(1) '...the district judge was entitled, on the material put before him by the claimants, to issue the summons on 9 February 2019'
(2) '...whilst the Code for Crown Prosecutors does not apply to him, a private prosecutor is subject to the same duties as the public prosecuting authorities. Those duties include the duty to ensure that all relevant material is made available to both the court and the defence (R. (Kay) v Leeds Magistrates’ Court [2013] 2 Cr. App. R. 27 at [23]). It is, accordingly, also accepted that the claimants, as private prosecutors, were under a duty to disclose the settlement agreement to the district judge and that they breached that duty by not doing so.' ['him' in this quote might better read as 'them' in this passage]
At paragraphs 35-40, Garnham J set out a summary of the Kay decision (quoted in footnote 11 above, as the second point made in that footnote).
[14] In R. (Siddiqui and Another) v Westminster Magistrates’ Court [2021] EWHC 1648 (Admin) [2021] 2 Cr. App. R. 25 ('Siddiqui'), the Divisional Court considered:
(1) The settlement agreement, at paragraphs 43 to 50;
(2) The nature of the breach of the duty of candour, at paragraphs 51 to 54; and
(3) Abuse of process, at paragraphs 55 to 60.
Before setting out those paragraphs, it is noted here the Divisional Court's conclusion, namely that the DJ had been wrong, as:
'...there was no proper ground for setting aside the summons and a stay was a wholly disproportionate response to the failure to disclose. There is a substantial public interest in the trial of these allegations.' (paragraph 61)
In the result, the Divisional Court remitted '...case to the Westminster Magistrates’ Court with a direction to proceed in accordance with the judgment of this court.' (paragraph 61)
(1) The settlement agreement
'43. The district judge said it was open to the claimants to restrict their ability to commence a private prosecution by contract. I agree. He said it was “not fanciful to suggest that that was the effect of this settlement agreement”. I agree that it was not fanciful. However, there were a number of arguments of substance to the contrary and in addressing questions of construction we are determining a mixed question of fact and law.
44. First, there was an argument that the expression “claims” in cl.1.1 did not include the possibility of a private prosecution against Mr Abbasi. A private prosecution is not happily described as a “claim”, an expression which, as [counsel for the claimants] submits, suggests a demand to pay monies due or an assertion of right by one individual over another. By contrast, private prosecutions, as much as public prosecutions, are proceedings brought in the name of the Crown with the intention of effecting punishment for wrongdoing; no claim is being made at all. Furthermore, the word “claim” is not used anywhere else in the settlement agreement to refer to criminal proceedings, but it is used in Recital A, to refer to civil matters. By contrast, criminal proceedings are referred to in Recital D as “cases”. In this regard, this was a very different case from Kay , where the settlement agreement made express its application to criminal proceedings.
45. Second, as noted above, it had been argued before the district judge that Mr Abbasi was guilty of a repudiatory breach of the settlement agreement and that breach was not accepted.
46. There seems to me a third argument potentially available to the claimants, namely that, on the proper construction of the agreement, the obligation set out in cl.1.1 was conditional upon the payment of the monies provided for in cl.2. That, however, was not an argument run before the district judge.
47. It is not necessary to resolve these potential arguments here. What matters is the district judge’s response to them. As to the first, he said, as noted above, that a construction of the settlement agreement which meant that the claimants had curtailed their ability to commence a private prosecution was “not fanciful”. He said that he was “of the view that, giving the words their normal meaning, it was an agreement to compromise all actions between the parties” and he said he found it “very difficult to now read into this agreement that … it was the intention of the parties to exclude private criminal prosecutions”. I note, however, that he made no positive finding that, on its proper construction, the agreement did in fact preclude a private prosecution.
48. The district judge’s approach appears to have been, as demonstrated from those excerpts of his ruling, that it was sufficient for his purposes that it was properly arguable that the settlement agreement excluded the claimants’ ability to bring a private prosecution. In my judgment, however, to proceed to determining the application to set aside the summons on the basis of an arguable construction of the agreement was an error of law.
49. A failure to disclose the settlement agreement might justify a quashing order; whether or not it did so in fact would depend on the nature of the breach of the duty of the candour, an issue I turn to below. However, the fact that it was “not fanciful” to suppose that, on its proper construction, the agreement precluded a private prosecution was not of itself sufficient to justify the quashing of the summons.
50. In any event, when he came to deal [with] the issue of repudiation, the district judge said he regarded himself as “ill-equipped to reach a conclusion” and accordingly did not do so. In my judgment, that observation entirely undermined his analysis and his decision to quash the summons. If he could not exclude the possibility that the contract had been repudiated, he could not conclude that the contract remained extant. If it was not extant, it could not operate to protect Mr Abassi from a private prosecution. If that was, or might have been, the position the district judge would only be justified in setting aside the grant of the summons if the act of non-disclosure itself justified such a course.'
(2) The nature of the breach of the duty of candour
'51. Central to the issue whether the breach of duty would itself justify the quashing of the summons is the question whether the failure to give disclosure was the result of a deliberate decision to avoid the obligation, or the result of mistake, over-sight or following poor advice. The district judge considered the question whether the failure to disclose was “deliberate” but made “no findings” on the issue beyond observing that the failure was “fundamental”.
52. It is plain from the evidence that the failure to disclose the settlement agreement was deliberate, in the sense that it was the result of a deliberate decision. It was not, for example, an oversight or the result of an accidental error in the preparation of the papers for the district judge. It is not clear whether that is what the district judge meant by “deliberate”. In any event, we can see no proper basis on which he could have concluded that the claimants or their solicitors intended deliberately to mislead the district judge considering the application for a summons by keeping back a document they knew was relevant to that decision. Certainly, the district judge did not set out the basis on which he might have reached such a conclusion.
53. I accept that the failure could be seen as fundamental in the sense that it went to the heart of the obligation of candour in this case. But it cannot fairly be said to have been fundamental to the fairness of the proceedings. That is so, if for no other reason than that Mr Abbasi had a copy of it and would have been able to deploy it at subsequent stages of the proceedings, notably in support of an application that the continuation of the proceedings was an abuse of process.
54. In those circumstances, I would regard as an error of law the district judge’s conclusion that this breach of the duty of candour was “fundamental”, so to require the quashing of the summons.'
(3) Abuse of process
55. Criminal proceedings once issued may be stopped where their continuation would amount to an abuse of process. In R. v Crawley [2014] 2 Cr. App. R. 16 , the Court of Appeal (Criminal Division) set out the circumstances in which the court had the power to stay proceedings for abuse of process. At [17]–[18], Sir Brian Leveson P said:
“17. As is clear from decisions such as Attorney General’s Reference (No.2 of 2001) [2004] 1 Cr. App. R. 25 (p.317); [2004] 2 A.C. 72, there are two categories of case in which the court has the power to stay proceedings for abuse of process. These are, first, where the court concludes that the accused can no longer receive a fair hearing; and, second, where it would otherwise be unfair to try the accused or, put another way, where a stay is necessary to protect the integrity of the criminal justice system. The first limb focuses on the trial process and where the court concludes that the accused would not receive a fair hearing it will stay the proceedings; no balancing exercise is required. The second limb concerns the integrity of the criminal justice system and applies where the court considers that the accused should not be standing trial at all, irrespective of the potential fairness of the trial itself.
18. Furthermore, it is clear from the authorities and beyond argument that there is a strong public interest in the prosecution of crime and in ensuring that those charged with serious criminal offences are tried. Ordering a stay of proceedings, which in criminal law is effectively a permanent remedy, is thus a remedy of last resort. As Lord Bingham of Cornhill observed in Attorney General’s Reference (No.2 of 2001) (at [24G]):
‘The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.’”
56. In R. v R. [2016] 1 Cr. App. R. 20; [2016] 1 WLR 1872, a case in which a stay of proceedings was sought following a failure to give proper disclosure, Sir Brian Leveson P returned to the second category of case where the court has power to stay a prosecution on the grounds of abuse of process. At [71], he said:
“71. … As noted above, [the trial judge] focused on the prosecutorial failings in this case. That brings into play the balancing exercise identified by Lord Steyn in R. v Latif [1996] 2 Cr. App. R. 92, 101; [1996] 1 WLR 104, 113 : ‘in a case such as the present the judge must weigh in the balance the public interest in ensuring that those that are charged with grave crimes should be tried and the competing public interest in not conveying the impression that the court will adopt the approach that the end justices any means.’
72. The problem arises because maintaining confidence in the criminal justice system (or, as it has been put, avoiding ‘an afront to the public conscience’) is an aim or aspiration which has to be perceived from different directions. On the one hand, there is gross misconduct which the criminal justice system cannot approbate (as in cases such as R. v Horseferry Road Magistrates’ Court, Ex p Bennett (1994) 98 Cr. App. R. 114; [1994] 1 A.C. 42 and R. v Mullen [1999] 2 Cr. App. R. 143; [2000] QB 520 ). On the other hand, however, it is important that conduct or results that may merely be the result of state incompetence or negligence should not necessarily justify the abandonment of a trial of serious allegations. As has been observed, there is no bright line and a broad brush approach is likely to be necessary.”
57. It follows that proceedings will be stayed as an abuse if the court concludes: (i) that the accused would not receive a fair hearing; or (ii) that, irrespective of the potential fairness of the trial itself, maintaining the integrity of the criminal justice system requires that the accused should not be standing trial at all. In the former case no balancing exercise is required; in the latter the court will balance the seriousness of the prosecutorial misconduct against the seriousness of the allegations.
58. It cannot be argued that the failure of the present claimants to disclose the settlement agreement to the court meant it would not be possible for Mr Abbasi to have a fair trial; there is nothing to suggest the claimants intended permanently to keep the settlement agreement from the court and, in any event, the defendant already had a copy of it because he was a party to it. The fact that it was not disclosed when it should have been when the summons was first sought, could not taint the conduct of the subsequent trial.
59. Nor can we see how it can be said that Mr Abbasi should not be standing trial at all. First, these were serious allegations and there is an obvious public interest in having them tried. That is a weighty consideration in favour of allowing the proceedings to continue notwithstanding the breach of the duty of candour. Secondly, there is no sense in which a trial would offend the court’s sense of justice and propriety. The error made by the claimants in not giving disclosure was not a deliberate attempt to keep the defendant from discovering an important document or to mislead the court. Thirdly, Mr Abbasi is not prejudiced by the failure to disclose the document to the court; he has the document and can use it during the proceedings. And finally, a stay is not imposed as a disciplinary measure against a prosecutor, except in most serious of cases, and this case is most certainly not an example of that.
60. That being so, we see no proper basis on which the district judge could conclude that it was appropriate to set aside the summons.'
[15] To read further about these two cases, see a different article by the same author, available here.