When is a prosecutor not a prosecutor?

In the case of R (Morales) v Kettering Magistrates’ Court [2013] EWHC 1922 (Admin), the magistrates purported to add a charge of Dangerous Driving against the defendant of their own volition. Despite opposition from both the defence and prosecution, the court usurped the prosecutor and decided the charges the defendant should face, adding a more serious count to the charges to be tried.

The Divisional Court held that the Magistrates had acted ultra vires and quashed the decision after the Claimant successfully challenged the decision.

Notwithstanding the recent trend towards ‘active case management’, this is a stark reminder that the Criminal Procedure Rules do not grant the court additional statutory powers; the Rules regulate the court’s use of existing powers granted by statute or common law. The decision was also confirmation of the long-established principle that the court should not lightly ‘enter the arena’.

Aside from the obvious arguments about the fairness and irrationality of such a course of action, this case required an examination of the finite number of ways in which a criminal charge may be lawfully instituted. The appeal directly concerned sections of the Magistrates’ Courts Act 1980 which had never before been the subject of any appellate authority.

At first instance, the magistrates were advised they had the power to add an either-way matter against a defendant, when there was already an either-way matter before the court. The rationale for the magistrates’ actions was based upon a flawed reading of the Magistrates Courts Act 1980, ss.6 and 25. Section 25 provides that magistrates can revert from a summary trial to committal proceedings when hearing a summary trial of an either-way matter and section 6 allows the magistrates to commit for any either-way offence disclosed on the papers, whether or not this was charged.

This was apparently done in accordance with an unpublished policy disseminated in the area. This was never disclosed and it still remains unknown what other local practices are occurring across the country in accordance with such policies.

On appeal, it was successfully argued that a criminal prosecution may be lawfully initiated in the magistrates’ court in the following ways:

  • Laying of an information;
  • The Written Charge and Requisition Procedure;
  • Arrest and charge by the police under PACE 1984; and
  • In limited circumstances, of the court’s own volition. This is limited to Contempt of Court and the offence under Bail Act 1976, s.6.

The Divisional Court held that reading Magistrates’ Courts Act 1980, ss. 6 and 25 together does not permit the court to add new charges; instead, as submitted by the Claimant, it was to be reserved for reconsidering the severity of either-way charges the prosecution had validly put before the court.

One would hope that any other Magistrate’s Courts areas operating unknown and undisclosed policies will pay heed to this judgement.


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