Law Report: Private prosecution not an abuse: Regina v Durham Magistrates' Court, Ex parte Davies - Queen's Bench Divisional Court (Lord Justice Stuart- Smith and Mr Justice Judge), 7 May 1993

A complainant's unreliability as a witness and his obsession about his cause do not justify a magistrate's decision at committal proceedings to discharge the defendants on the basis that the proceedings were an abuse of the process of the court.

The Divisional Court quashed decisions of a stipendiary magistrate not to commit prison officers for trial on charges of assault occasioning actual bodily harm and ordering the applicant to pay pounds 7,500 costs, and ordered a fresh committal before another magistrate.

The applicant alleged that while he was detained in Franklyn Prison, County Durham, he was assaulted on three occasions by five prison officers, including senior officers. On his release from prison he initiated a private prosecution against the five officers. On the first day of the committal proceedings, when the applicant had completed his evidence-in-chief and was being cross-examined, the stipendiary magistrate interposed a witness who would not be available after the second day.

After the luncheon adjournment on the second day, after that witness had completed her evidence, which did not assist the applicant, the magistrate said that he did not wish to hear any more evidence. He decided that there was not sufficient evidence to put the defendant prison officers on trial by jury and that the proceedings were an abuse of the process of the court. He discharged the prison officers and ordered the applicant to pay pounds 7,500 costs.

The applicant applied for judicial review of the magistrate's decisions on the grounds that the magistrate acted prematurely in that he had not heard all the evidence, including that of two prisoners, a governor, a medical officer, the applicant's solicitor, and his McKenzie friend.

Peter Buckley (Clifford Chapman & Co, Manchester) for the applicant; Ian Ashford-Thom (Treasury Solicitor) for the prison officers.

LORD JUSTICE STUART- SMITH said it was unfortunate that the magistrate appeared to have been under a misapprehension that there were no other witnesses who could give relevant evidence. Had the magistrate heard the evidence but still concluded that it was not sufficient to justify committal, the Divisional Court could not have interfered. But the magistrate declined to exercise his jurisdiction and that was reviewable. That basis of the magistrate's decision could not be upheld.

Abuse of process was separate and distinct from the sufficiency of evidence of the offence charged to justify committal. It was now clear that the magistrates' court had jurisdiction to dismiss proceedings as an abuse of process in an appropriate case. The Divisional Court would review the circumstances said to give rise to the jurisdiction in any particular case.

The magistrate gave five reasons for dismissing the applicant's case. The first, that the applicant was an unreliable witness, could not have any bearing on whether the proceedings were an abuse of the court's process, as opposed to the sufficiency of the evidence to justify committal.

The second, that the applicant had an obsession about his cause, might affect the reliability of the applicant's evidence but could not amount to an abuse of process: see R v Telford Justices, Ex p Badham (1991) 2 QB 78. The right of a citizen to bring a private prosecution was of considerable constitutional importance, though it was now subject to the right of the Director of Public Prosecutions to take over the conduct of a private prosecution.

The third reason, that the applicant's aggressive and abusive behaviour in the conduct of examination and cross-examination of a witness did not make the proceedings themselves an abuse of process. The court should do its best by warning the offender that his conduct was not acceptable; if he persisted, it might amount to a contempt of court. But it was only if the conduct was such that the court could not fairly and properly discharge its function that the proceedings should be dismissed as being an abuse of process. This case did not come within measurable distance of that. There was no evidence that the magistrate tried to restrain the applicant.

The same considerations applied to the fourth reason that the applicant made 213 complaints between 16 May 1989 and 29 September 1990. The fifth reason, that the applicant would have been content with an apology, might not be entirely accurate. But the applicant's attitude, even if accurately understood by the magistrate, could not constitute proceedings which were otherwise properly brought and disclosed an indictable offence, an abuse of the process.

The Divisional Court was not persuaded that it should exercise its discretion to refuse to quash the magistrate's decisions.

Mr Justice Judge agreed.

Ying Hui Tan, Barrister