R (McGill) v Newcastle Magistrates’ Court [2024] EWHC 1207 (Admin)

In the case of R (McGill) v Newcastle Magistrates’ Court [2024] EWHC 1207 (Admin), Fordham J heard an application for judicial review concerning a Magistrates’ Court’s decision to decline to issue a summons. This judgment, dated 21 May 2024, is noteworthy as it marks the first instance where the higher courts have scrutinised the proper application of Criminal Procedure Rules (“CrimPR”) r.7.2(14)(a) to (f).

These provisions, effective since 3 October 2022, provide, as the judge was to conclude, examples of grounds upon which an otherwise well-founded application for a summons may be refused.

The claimant Mr. McGill applied for judicial review of a Magistrates’ Court’s decision to refuse a summons in a private prosecution.

The refusal was based on the Court’s belief that it had previously determined an application by Mr. McGill, which alleged the same or substantially the same offences against the same defendant on the same or substantially the same facts, as per CrimPR r.7.2(14)(a).

However, the Magistrates’ Court’s understanding was based on a factual error, rendering the basis for the refusal of the application for a summons flawed.

In his judgment, Fordham J thoroughly analysed the true status of CrimPR r.7.2(14)(a) to (f). These sub-paragraphs are intended as examples of circumstances when an application for a summons may be refused, and are to be understood and applied in the context of the previous case law that addresses vexatious or otherwise abusive applications for summonses.

Background:

Application for Summons:

On 12 September 2022, Mr. McGill applied for a summons against Haizhe Huang. The Acting Legal Team Manager (Crime) for Newcastle Magistrates’ Court, empowered under CrimPR r.2.8(5)(a), made the decision to refuse this application on 11 October 2022.

Mr. McGill’s application was made following a judgment by HHJ Kramer on 21 January 2021 in civil proceedings. In that judgment, Judge Kramer found that Mr. Huang was likely involved in the forgery of banking documents and a “Shareholding Entrust Agreement” (“The Shareholding Agreement”) connected to a business partnership between Messrs McGill and Huang. This business concerned the sale of advertising on LED display boards at Premier League football grounds. The advertising was sold across three football Premier League seasons. In relation to the 2016/2017 season the company Wenzhou Xiai Sports Development Co Ltd (“The Company”) was set up to receive income from the advertising deal.

At the heart of the allegations was Mr. McGill’s claim that Huang had relied on the bank documents and Shareholding Agreement to distance himself from the Company when it was in fact his business.

In light of Judge Kramer’s decision, Mr. McGill contacted the CPS with a view to having Mr. Huang prosecuted for forgery and. However, after receiving no reply Mr. McGill decided to commence a private prosecution. This first application was made to South Tyneside Magistrates’ Court on 12 May 2021 seeking summonses and warrants for arrest against Mr. Huang and his wife.

This application was originally rejected on a technicality. Mr. McGill then served an amended application for summons on 4 August 2021 seeking to charge Mr. Huang and his wife with forgery of the banking documents only. This amended application was granted and on 16 August 2021 the Magistrates’ Court issued two summonses for the alleged forgery offences.

Ahead of the first hearing, on 9 September 2021 Mr. McGill provided a witness statement explaining that he was seeking the Court’s permission to add a charge in relation to the Shareholding Agreement as recent evidence had come to light showing that the agreement was indeed false.

In advance of the first hearing, the CPS asked Mr. McGill to provide a case summary with an outline of the allegations the evidence in support. Within this document, Mr. McGill included the allegation regarding the Shareholding Agreement.

Prior to the first hearing taking place the CPS issued a notice of discontinuance, stating that there was not enough evidence to provide a realistic prospect of conviction on the forgery charges. Mr. McGill assumed that this decision related to all charges and sought a formal review of the CPS’ decision under the Victims Right of Review (“VRR”) scheme.

The VRR decision upheld the original decision to discontinue proceedings but indicated that the CPS had only considered the forgery charges relating to the banking documents, not the shareholding agreement. Therefore, upon receiving the VRR decision Mr. McGill promptly made an application for summons on 9 September 2022 in relation to forgery of the Shareholding Agreement.

Grounds for Refusal:

In considering the new summons application relating to the shareholder agreement, the Magistrates’ Court was required to apply the recently amended CrimPR r.7.2(14) which provided:

(14) The court may decline to issue a summons or warrant if, for example—

(a)    a court has previously determined an application by the same prosecutor which alleged the same or substantially the same offence against the same defendant on the same or substantially the same asserted facts;

(b)    the prosecutor fails to disclose all the information that is material to what the court must decide;

(c)    the prosecutor has—

(i)  reached a binding agreement with the defendant not to prosecute, or

(ii)  made representations that no prosecution would be brought, on which the defendant has acted to the defendant’s detriment;

(d)    the prosecutor asserts facts incapable of proof in a criminal court as a matter of law;

(e)    the prosecution would constitute an assertion that the decision of another court or authority was wrong where that decision has been, or could have been, or could be, questioned in other proceedings or by other lawful means; or

(f)     the prosecutor’s dominant motive would render the prosecution an abuse of the process of the court.

The Magistrates’ Court declined the summons based on CrimPR r.7.2(14)(a) and (14)(f). The impugned decision said that the refusal to issue the summons was “in view of the history of the case” and was “based on the chronology of events”. The key events referred to were:

1. The institution of proceedings by Mr. McGill in July 2021;
2. The CPS taking over and discontinuing those proceedings; and
3. The CPS decision on a VRR maintaining that the original discontinuance decision was correct.

Legal Analysis:

Established Principles:

The High Court’s analysis began by reaffirming established legal principles. When considering an application for a summons, it is essential to determine whether the application meets certain threshold requirements. These include whether the allegations constitute an offence known to the law, whether the essential ingredients of the offence are prima facie present, and whether there are compelling reasons that ought to stop the court from issuing the summons.

Such compelling reasons may include where an application is vexatious, or is an abuse of process or “otherwise improper”. The Court highlighted the existence of judicial discretion and the necessity of evaluating each case on its merits. It noted in particular that the overarching question is whether it is a “proper case” to issue the summons, but that this is on the the premise that the summons should be granted unless there are compelling reasons not to do so.

Case-Specific Propriety:

Fordham J noted that the six paragraphs of CrimPR r.7.2(14) serve as non-exhaustive examples of circumstances where it might not be a proper case in which to issue a summons but that these provide a flexible framework. Fordham J stated[1]:

The seven paragraphs [14a] to [14f] in CrimPRr.7.2(14) are not to be read as a series of prescribed ‘tick-boxes’ to identify when a summons should be declined. That is a trap.

Fordham J goes on to explain[2]:

The main theme in what I have said so far really converges into one simple point. In applying the non-exhaustive examples [14a] to [14f] the decision-maker is looking at the circumstances of the individual case – whether those circumstances fit within the language of a given example or not – to see whether they provide the competing reasons why this is “not a proper case” to issue the summons.

Circumvention Narrative:

The refusal letter from the Magistrates’ Court suggested that Mr. McGill was attempting to circumvent the CPS’ prior decision to discontinue proceedings against Huang. However, the CPS’ decision had not considered the new allegation about the forgery of the Shareholding Agreement, focusing instead only on the alleged forgery of bank documents. This distinction was crucial because it highlighted that Mr. McGill’s application pertained to a new and distinct allegation that had not been previously adjudicated upon.

Failure to Consider Relevant Circumstances:

The court found that the decision to refuse the summons failed adequately to consider the distinct nature of the new forgery allegation concerning the Shareholding Agreement. This allegation had not been previously reviewed by the CPS or the Magistrates’ Court. Therefore, the refusal on the grounds of CrimPR r.7.2(14)(a) was deemed inappropriate since the new application was not a mere repetition of the earlier case.

Conclusion:

Judgment:

Fordham J concluded that the refusal to issue the summons was flawed due to a failure properly to consider the new allegation. Consequently, the decision was quashed, and the matter was remitted to the Magistrates’ Court for a fresh decision, ensuring that the new allegations received due consideration.

Implications:

This judgment underscores the importance of thoroughly evaluating the specific details and history of each case and highlights that the new CrimPR r.7.2(14) provides a non-exhaustive list of examples of grounds upon which an application for a summons may be refused.

Edmonds Marshall McMahon

June 5^th 2024.

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[1] Paragraph 12

[2] Paragraph 22