Law Report: Bar on private road death prosecution upheld: Regina v Metropolitan Stipendiary Magistrate, ex parte Chaudhry - Queen's Bench Divisional Court (Lord Justice Kennedy and Mr Justice Bell), 7 July 1993.

Where a defendant already faced one or more informations laid by the Crown, a magistrate should be slow to accede to the request of a private prosecutor that he issue another summons against the defendant, alleging a more serious offence in respect of the same matter, unless there were special circumstances justifying such a course of action.

The Queen's Bench Divisional Court refused an application by Brigitte Chaudhry for judicial review of the refusal by a metropolitan stipendiary magistrate, Mr Evans, on 5 July 1991, to issue a summons against Nicholas Sansom, against whom the applicant had laid an information alleging that he had caused the death of her son, Mansoor Chaudhry, by reckless driving.

On 27 October 1990, Mansoor Chaudhry, riding a motorcycle, was killed in a collision with a van driven by Mr Sansom. The police made inquiries and submitted a file to the Crown Prosecution Service. Informations were laid and summonses issued against Mr Sansom alleging: (i) driving without due care and attention; (ii) failing to comply with a traffic sign (driving through a red light), and (iii) failing to ensure his brake lights were clean and in working order.

Mrs Chaudhry was upset by the absence of any summons alleging causing death by reckless driving. When the matter came before the magistrate, counsel on her behalf laid an information and invited the magistrate to issue a summons in respect of that offence. The magistrate declined.

Anthony Scrivener QC and Christa Fielden (Bloom Camillin) for the applicant; Stephen Robbins (Treasury Solicitor) for the magistrate; Peter Hunt (Jeffrey Gordon & Co) for Mr Sansom.

LORD JUSTICE KENNEDY said the magistrate erred in considering himself bound by R v Ealing Justices, ex p Dixon (1990) 2 QB 91, not to issue a summons where the CPS already had conduct of the case. But for other reasons his exercise of discretion was correct.

The jurisdiction the magistrate was being asked to exercise was to be found in section 1(1) and (2) of the Magistrates' Courts Act 1980. At first sight, section 1(1) conferred an unfettered discretion, which had to be exercised within the framework of section 1(2). In the present case, the offence alleged satisfied the requirements of section 1(2)(a) and the magistrate had no option but to issue the summons.

In R v West London Metropolitan Stipendiary Magistrate, ex p Klahn (1979) 1 WLR 933 at 935, Lord Widgery CJ said the duty of a magistrate in such circumstances was to 'exercise a judicial discretion'. He should 'consider the whole of the relevant

circumstances.'

No one had questioned the individual's right to prosecute, but that right was not unfettered. In a case, a private prosecutor would have two hurdles to surmount. He had to persuade a magistrate to issue a summons; and thereafter, if he wished to retain control of his case, he might have to persuade the Director of Public Prosecutions not to take it over, under section 6(2) of the Prosecution of Offences Act 1985, with a view to aborting it.

A magistrate should take into account whether an incident had already been investigated by a responsible prosecuting authority, and bear in mind that the CPS was required by its Code to charge the most serious offence revealed by the evidence, with regard to the prospects of securing a conviction. If a summons for a more serious charge was issued by a private prosecutor, the discretion of the Crown prosecutor was overridden in a way that might appear oppressive.

Unless there were special circumstances, such as apparent bad faith on the part of the public prosecutor, the magistrate should be very slow to issue a summons, at the behest of a private prosecutor, against a defendant who, in respect of the same matter, already faced one or more informations laid by the Crown.

In this case, the magistrate was therefore right to have regard to the action already taken by the CPS and to the DPP's powers under section 6(2) of the 1985 Act, and accordingly their Lordships should not interfere with his conclusion. MR JUSTICE BELL agreed.

Paul Magrath, Barrister