The court considered the power to quash a magistrates decision for an error on the part of the prosecutor.
Held: Munby J said: ‘In the first place, and as ex p Fox-Taylor and ex p A show, the jurisdiction is not confined to, although it is no doubt most frequently exemplified by, criminal cases where the judicial process has been distorted by some failure on the part of the prosecution. So the fact that in the present case the Justices were not exercising their criminal jurisdiction is not, of itself, any reason why a quashing order should not be made.
Secondly, it is now clearly established that a conviction or other judicial finding by an inferior tribunal is amenable to quashing by certiorari even if it was obtained without unfairness by the tribunal and without malpractice by the prosecutor or other complainant: see the formulation of the issue by Watkins LJ in ex p Scally at p 547H. In an appropriate case, as Watkins LJ went on to demonstrate by reference to the authorities I have mentioned, the jurisdiction is exercisable even if the tribunal has behaved with complete propriety – which is, after all, the characteristic feature of all these cases – and, more to the point, even if there has been no fraud, collusion, perjury, bad faith or dishonesty on the part of the prosecutor or complainant.
Thirdly, certiorari can in principle go if there has been an irregularity producing an unjust or potentially unjust result. This is best exemplified by ex p Scally and ex p A, two of the cases to which Mr Giffin very properly took me.
In ex p Scally at p 549G Watkins LJ described what had gone wrong: ‘I would regard the mischief here as arising from a regrettable failure, in the police stores or other place under the control of the police, to take the simple precaution of ascertaining whether, having regard to the use for which the swabs were intended, [the] swabs were . . suitable . . It was as simple and unfortunate as that . . it is not suggested that dishonesty entered this affair at any stage.’ Quashing the conviction he said at p 556C: ‘What happened here was that, there being no dishonesty, the prosecutor (a combination of police and CPS) corrupted the process leading to conviction in a manner which was unfair, for it gave the defendants no proper opportunity to decide whether to plead guilty or not guilty; indeed it wrongly denied them a complete defence to the charge.’
Previously, at p 554H, Watkins LJ had held that ‘irregularity’ in this context was not confined to fraud. ‘Grounds other than fraud or collusion can obviously . . providing they are analogous to such conduct, be regarded as irregularities at the trial as ex p Hawthorn, ex p Khanna and ex p Goonatilleke show.’ Hutchison J said much the same thing at p 557D: ‘I do not consider that . . we are improperly extending or distorting that special category of cases, analogous to fraud, and exemplified by the decision in Hawthorn’s case [1979] QB 283, where relief is available even in the absence of error or misconduct by the tribunal. It is clear . . that it can include cases of unfairness in the conduct of the proceedings because of a failure on the part of the prosecutor, even where there has not in fact been fraud or dishonesty. It seems to me that the present cases are readily to be accommodated within that special category.
In ex p A Lord Slynn of Hadley referred at p 343G to what had happened: ‘It is not suggested that the officer gave her inaccurate evidence deliberately, let alone fraudulently. Yet it is plain that in a matter of crucial importance, the board was led to proceed on evidence which was wrong and they did not have the true facts.’ Quashing the decision Lord Slynn continued at p 345C: ‘I . . decide the matter on the . . basis . . that what happened in these proceedings was a breach of the rules of natural justice and constituted unfairness. It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness.’ He concluded at p 347A: ‘I consider therefore that, on the special facts of this case and in the light of the importance of the role of the police in co-operating with the board in the obtaining of evidence, there was unfairness in the failure to put the doctor’s evidence before the board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done.’ Agreeing, Lord Nolan referred at p 348B to what he called ‘the appearance of unfairness’. Lord Hobhouse of Woodborough said at p 348D: ‘There was an inadequate observance of the principles of natural justice.’
As Mr Giffin correctly pointed out, Lord Nolan recognised at p 348B that the House was taking an ‘exceptional course’ in ex p A. Properly Mr Giffin also took me to the passages in ex p Bates where Buxton J said that ‘the standard that this court has laid down for considering such applications is an extremely stringent one’ and, referring to ‘this very exceptional jurisdiction’, said that ‘one should look for cases that can properly be described as being analogous to fraud, or where there has been a serious error on the part of the prosecutor.
I do not dissent from any of that. But such observations have to be put in a context which was, as it seems to me, best expressed by Watkins LJ in ex p Scally. Having acknowledged at p 555C ‘how necessary it is to recognise clearly the principle we have to observe and how careful this court must be in its application in any particular case’, he continued with these important words: ‘At the same time the overriding principle, in my view, must surely be that justice should be done and if it be demonstrated that another principle rigidly applied is or would seem to be getting in the way of doing justice, the bounds of that principle require to be very critically examined in a modern light and without the so often deployed floodgates argument being given undue prominence. That is not to suggest that the principle is lightly to be thrust aside in order to cure a glaring injustice, however great the temptation may be. It is to assert that instances of the proper application of the principle are various and are more likely than not to increase in that respect.’ I respectfully agree.
And at the end of the day there is the simple statement of principle by Lord Slynn: ‘It does not seem to me to be necessary to find that anyone was at fault . . It is sufficient if objectively there is unfairness.’
Judges:
Munby J
Citations:
[2003] EWHC 956 (Admin)
Citing:
Cited – Regina v Bolton Justices ex parte Scally CA 1991
A conviction or other judicial finding by an inferior tribunal is amenable to quashing by certiorari even if it was obtained without unfairness by the tribunal and without malpractice by the prosecutor or other complainant. Watkins LJ described what . .
Cited by:
Cited – Harrison, Regina (on The Application of) v Birmingham Magistrate’s Court and Another CA 25-Mar-2011
The defendant appealed against a refusal of judicial review of an order that she forfeit a sum under the 2002 Act. 5,000 pounds in cash had been found at her house in a search for other matters. She had lied to the police about its provenance, but . .
Lists of cited by and citing cases may be incomplete.
Magistrates
Updated: 02 May 2022; Ref: scu.430882
