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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Crown Prosecution Service, R (on the application of) v Smith [2016] EWHC 1751 (Admin) (18 May 2016) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2016/1751.html Cite as: [2016] EWHC 1751 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		18 May 2016

1. MR JUSTICE CRANSTON: This is an appeal by way of case stated by the Crown Prosecution Service from a decision of the North Northumbria Magistrates' Court, sitting at the North Tyneside Magistrates' Court, dated 19 November 2015. That decision was to acquit Mr Alan Smith of a charge of breaching the terms of a non-molestation order contrary to Section 42A (1) and (5) of the Family Law Act 1996.
2. Mr Smith did not appear at court for trial on 19 November 2015, albeit that he had attended on several occasions previously when matters did not proceed. Nor was he represented that day. Mr Smith had instructed a law firm to represent him on 19 November but upon his not attending they withdrew from the proceedings and the case proceeded without his being represented. Another firm was subsequently instructed to represent him in unrelated matters and is not in a position to address what was said to have taken place on 19 November. There is a letter from that firm dated 16 May 2016 with an attached skeleton argument from counsel. These explain that the solicitors have not been instructed to represent Mr Smith in proceedings before me today.
3. The non-molestation order had been made by the North Shields Family Court in April 2015. Under it, Mr Smith was prohibited under the terms of the order from going within one-hundred metres of the home of Catherine Laws. The allegation was that he had driven down her street on 29 June 2015.
4. At the hearing on 19 November the legal adviser to the justices raised issues as to the validity of the non-molestation order which had allegedly been breached, pointing out that the order before the court dated 27 April 2015 had been made without notice and may have been superseded at a hearing which, on the face of the notice, was due to take place on 6 May 2015. According to the case stated, the legal adviser inquired whether the prosecutor had a certificate of service in relation to the order dated 27 April 2015. The legal adviser also requested details of the outcome of the hearing on 6 May, since that would have been when the earlier order would have either been ratified, varied or dismissed since the earlier order was a conditional order.
5. Counsel for the Crown Prosecution Service confirmed that she did not have information about either matter and said that she was unaware that these issues would be raised, given that they had not been agitated at earlier case management hearings. The court adjourned to enable her to make inquiries. When she returned she stated that she had been told to proceed with the prosecution on the basis of the documentation provided.
6. The legal adviser informed the justices that the prosecution would need to satisfy the court that there was an order in existence before any breach could be tried. Prosecuting counsel confirmed that her case would rely on the statement of Ms Laws, the non-molestation order and the admissions in an agreed police summary. Again she commented that this was the first time that the matter had been raised. It had not been raised as an issue on completion of the Preparation of Effective Trial form. Therefore, it must follow that the defendant accepted that the order was in place. The legal adviser retorted that the court could not assume that that indeed was the case. It was a point that may have been missed at hearings but it was being raised on the day of trial, and the legal adviser was remedying any earlier omission.
7. The justices then offered further time to the prosecutor but she declined the invitation. The justices then said:

i. "In the absence of a certificate of service or statement that the order of 27 April 2015 had been confirmed at a subsequent hearing date, we are not satisfied that the order is in force, and on that fundamental point therefore the CPS would not be able to prove the case today."

9. Prosecuting counsel requested that the justices hear evidence from Ms Laws on the alleged breach on 29 June 2015 but the chairman of the Bench repeated that a fundamental part of the prosecution could not be established:

i. "In the absence of a proof of service or in the absence of a statement to the effect that there was an order in place, we cannot deal with an alleged breach and there will be no need to hear that evidence."

10. The justices then dismissed the case.
11. The justices pose for the opinion of this court two questions: first -

i. "Were the magistrates correct to dismiss the proceedings without allowing the prosecution the opportunity to present any evidence or make any representations?"

13. Secondly -

i. "Can Section 142 of the Magistrates' Court Act 1980 apply in these circumstances to rectify a situation in which the court has dismissed a case in acknowledged divergence from the procedure which ought to apply?"

14. The case stated concedes that the magistrates did not follow the correct procedure as set out in Section 9 (2) of the Magistrates' Court Act 1980 ("the 1980 Act"). That states as follows:

i. "(2) The court, after hearing the evidence and the parties, shall convict the accused or dismiss the information."

15. The case stated refers to the leading decision of Re Harrington [1984] AC 743. It is to the effect that the magistrates cannot dismiss any information until after they have heard the parties, and whatever evidence the parties may properly lay before them, save of course where no evidence is tendered by the prosecution. The House of Lords in Re Harrington held that in acting in that way justices would be in breach of their statutory duty under Section 9 (2), and a final decision in breach of those provisions would be a nullity. The case stated also acknowledges that Rule 24.3 (3) and Rule 25 of the Criminal Procedure Rules are such that the course that they took was in error.
16. By their second question however the justices suggest that the matter could be resolved by invoking Section 142 of the 1980 Act. That section, however, is of no assistance. It reads as follows:

i. "(1) A magistrates' court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; ..... "

18. The words "an offender" clearly act as a limitation on the power to vary or rescind contained in Section 142 (1). Those words cannot refer to someone against whom there is no allegation or where an information against a person has been dismissed.
19. In R (Application of O) v Stratford Youth Court [2004] EWHC 1453 Admin, Lord Justice Rose, with whom Mr Justice Harrison agreed, said:

i. "The crucial question which arises for determination today as it seems to me is whether or not, the prosecution having offered no evidence and the court having dismissed the charge, it was open to the court to re-open matters in the way in which they did. In my judgment it was not. Events having taken the course which I have described, the court as it seems to me was functus officio and any further hearing against the defendant in relation to this matter would inevitably give rise to a plea of autrefois acquit on his part. It is unnecessary to go into the authorities on which the court came to its conclusion."

20. Consequently, the plain words of Section 142 and the clear authority of R (Application of O) v Stratford Youth Court preclude a court using Section 142 (1) in the circumstances of this case.
21. Consequently, I allow the appeal. I answer the second question in the negative and I remit the case to the justices for a trial of the information.
22. Ms Schützer Weissman is that all?
23. MS SCHÜTZER WEISSMAN: It is.