Case Law: R v Gateshead Justices

This case law from 1981 means that Magistrates’ Courts have to follow legislation when issuing summonses; so to be valid it has to have been issued by a Justice of the Peace.

Up to now it hasn’t been available on the internet, so we typed it up from a hard copy because it is a very powerful tool that can be used in your defence when a summons has not been issued by a Justice of the Peace. It is particularly relevant for council tax where the council is issuing fraudulent summonses that have not been issued in accordance with Section 51 of the Magistrates Court Act 1980.

In this case, the applicants, Tesco Stores Ltd and D W Parkin Construction Ltd, applied for judicial review in the form of an order of certiorari, where a higher court is requested to reexamine the actions of a lower court. The lower courts at fault were Gateshead Magistrates Court and Birmingham Magistrates Court.

Both applicants were challenging the validity of a summons issued in a way that did not follow the legislation. Therefore they also questioned the outcome of the cases if the summons was found to be invalid. They argued that both courts had been delegating the issuance of summonses to assistant admin staff, which was contrary to the legislation requiring summonses to be issued by either a Justice of the Peace or a Clerk to the Justices.

The applicants contended that the courts in question had no jurisdiction because the information had not been validly laid before a justice of the peace or the justices’ clerk in accordance with Section 1 of the Magistrates’ Courts Act 1952. However, both courts had argued that the summonses were validly laid and went on to convict the applicants.

Both of the courts said they had been following directions from a circular issued in 1975 by the council of the Society of Justices’ Clerks which claimed to give the magistrates courts the authority to circumvent the legislation by allowing assistants to issue summonses. This was based on changes made to the Justices’ Clerks’ Rules by the Lord Chancellor in 1970.

The applicants had to take their cases to a higher court for a decision on whether court admin staff could issue a summons when at the time the legislation only permitted a Justice of the Peace or a Clerk to the Justices to issue the summons. The Queens Bench Division reviewed the practice of admin staff issuing summonses and ruled that the Lord Chancellor’s ‘advice was misconceived and should no longer be followed’ and subsequently quashed the decisions of both of the courts and both applicants had their convictions quashed.

This case demonstrates that the magistrates courts acted without jurisdiction in convicting the applicants because the information was not originally laid before an authorised person – at the time a Justice of the Peace or a Clerk to the Justices – and because the courts had no jurisdiction they had no legal authority to adjudicate either of the cases.

Although the legislation referenced was repealed in 1979 and new legislation was introduced in 1980, the Magistrates Court Act, this case law demonstrates that the court issuing the summons was not allowed to circumvent the legislation by delegating the issuing of a summons as an administrative act, hence the issuing of a summons is judicial.

The Magistrates Court Act 1980, Section 51 Issue of summons on complaint:
“Subject to the provisions of this Act, where a complaint is made to a justice of the peace acting for any petty sessions area upon which a magistrates’ court acting for that area has power to make an order against any person, the justice may issue a summons directed to that person requiring him to appear before a magistrates’ court acting for that area to answer to the complaint.”

As such it is evident that Parliament has only authorised a Justice of the Peace to issue a summons, which they reconfirmed in the Courts Act 2003.

Therefore, the 1980 legislation remains: meaning that no individual, even the Lord Chancellor, is able to rewrite rules in an attempt to circumvent legislation to validate anyone other than a Justice of the Peace to issue a summons for anything. Any changes to the legislation must be an act of parliament or an amendment to current legislation.

As we know, all councils issue their own illegal summonses for council tax and this case law can be used in your defence because they are ignoring the legislation. R v Gateshead Justice’s evidences the issuance of a summons is a judicial function and cannot be delegated as an administrative function. If the issuance of council tax summons is judicial, then we may have a clear violation of legislative power when a summons is not issued by a Justice of the Peace. We can use this case law to demonstrate that the procedures set in legislation cannot be ignored by the courts since a precedent has already been set. They cannot discriminate against us using it because of the Equality Act 2010, therefore, it is still valid for us to use today.

We can point out to the Magistrates’ Court that they are bound by case law and are therefore limited to accepting it and are unable to challenge it, regardless of who is using it or why it is being used. Therefore, it will have to be moved to the High Court for challenge.

To allow one party to use case law to their advantage, but deny the other party would be a prejudicial action. This could then be challenged under the Magistrates Court Act 1980 section 142, whereby the court has the opportunity to correct its own errors. Failing that, either appeal to a higher court or a judicial review with regard to the prejudicial action.

This case law opens up a can of worms because they will be forced to take every case where either a defendant or claimant is using it to the High Court or Crown Court for the case law to be disputed as it cannot be challenged in a Magistrates Court. Such a case might even have to go all the way to the Supreme Court. Until then this case law stands without anyone in the Magistrates Court being able to ignore it, which is why it has been removed from the internet up to now.

Solicitors Use of This Case

It has been said that some solicitors acting on behalf of councils are using this case to justify Legal Advisers exercising delegated powers to authorise a summons. This is an attempt to circumvent the legislation to justify someone other than a Justice of the Peace to authorise a summons. However, they are wrongly using this case because this argument relies upon repealed legislation. Therefore, they are making an error of law: are no conferred powers to issue a summons either in the civil or criminal jurisdictions.

Parliament had previously authorised a Justices Clerk (who had to be a barrister or solicitor with not less than 5 years standing) to perform judicial acts that could be carried out by a single Justice of the Peace. This was pursuant to Section 1 of the Magistrates Court Act 1952 (repealed by s154 of MCA1980), Section 19 of the Justice of the Peace Acts 1949 (repealed 2013), Section 25 of the Justice of the Peace Act 1979 (repealed 1997), and the Justice of the Peace Rules 1970 (repealed by sections 1 and 51 of the Magistrates Court Act 1980).

So all of the legislation supporting the authorisation of a Justices Clerk to perform judicial acts has now been repealed, so this case law cannot be used by the council to justify the fraudulent issuing of council tax summonses.

Sections 1 and 51 of the Magistrates Court Act 1980, clearly demonstrate that Parliament removed the powers of the Justices clerks having authority to issue a summons. This was reaffirmed in the Court Act 2003, which updated Section 51 of the MCA1980 to its current wording: “Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons to the person requiring him to appear before a magistrates’ court to answer to the complaint”.

Therefore, any summons issued by any ‘authorised person’ other than a Justice of the Peace is without Parliamentary or Common Law authority rendering it ultra vires, of no lawful standing, and void ab initio.

Any summons issued by a Legal Adviser is unlawful and the court must dismiss the claim.

However, the solicitor acting for the council may additionally try to cite the Justices Clerk’s Rules 2 and 3 of Schedule 1, paragraph 2 to further justify the Legal Advisor’s act of issuing the summons, however, these rules are ultra vires because they have no authority from Parliament.

The rules are secondary legislation which cannot defy the intent of parliament as expressed in the Courts Act 2003. This Act of Parliament affirmed Parliament’s previous clear intent with Section 51 of the Magistrates Court Act 1980 that judicial decisions can only be made by judicial officers.

The Lord Chief Justice and Lord Chancellor, who made the Rules, do not have the authority to change legislation; they can only make rules about procedure and practice pursuant to Section 144 of the Magistrates Court Act 1980. This section makes it clear that there is a difference between procedure and practice and judicial decision which is also reflected in the Courts Act 2003.

So the function of issuing a summons can only be carried out by a Justice of the Peace who has taken an oath to serve the people according to law.

The Justices Clerks Rules do not have Parliamentary Authority and therefore no legal authority, meaning that all council tax summonses are unlawful.

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Page 1027 QBD R v Gateshead Justices / All England Law Reports [1981] 1 AII ER

R v Gateshead Justices, ex parte Tesco Stores Ltd
R v Birmingham Justices, ex parte D W Parkin Construction Ltd and others

b. QUEEN’S BENCH DIVISION
DONALDSON LT, FORBES AND BINGHAM JJ
18th, 26th FEBRUARY 1981

c. Magistrates – Jurisdiction – Trial of information – Duty of considering information delegated by justices’ clerk to his assistant – Assistant considering information against accused within time limit for instituting proceedings – Accused appearing before justices after expiry of time limit – Whether information validly laid before assistant – Whether justices having jurisdiction to try information – Magistrates’ Courts Act 1952, s 1 (1) – Justices’ Clerks’ Rules 1970 (SI 1970 No 231), r 3.

d. On 6th February 1974, which was within the six-month time limit for the institution of proceedings in respect of an offence under the Food and Drugs Act 1965, a local authority sent an information to a magistrates’ court alleging that on 17th August 1978, the applicants had committed an offence under that Act. In accordance with the prevailing practice, which had been generally adopted by magistrates’ courts to ease the workload of justices and justices’ clerks, the information was considered forthwith not by a justice of the peace or by the justices’ clerk but by a senior assistant in the justices’ clerk’s office, who had been specifically authorised by the clerk to consider informations on his behalf. The assistant decided that the information was in order and gave it to another senior assistant in the clerk’s office to type and issue the summons. On 15th June 1979, when the case came on for hearing by the justices, the applicants contended that the court had no jurisdiction because the information had not been validly laid before a justice of the peace or the justices’ clerk, in accordance with s 1 of the Magistrates’ Courts Act 1952 and r 3 of the Justices’ Clerks’ Rules 1970, before the expiry of the time limit prescribed by the 1955 Act and it was too late at that stage to lay a further information. The justices held that an information laid before a member of the clerk’s staff was validly laid and went on to hear the information and convict the applicants. The applicants applied for an order of certiorari to quash the justices’ decision.

g. Held – The acts of considering an information and deciding whether a summons should be issued were judicial and not administrative and were therefore not functions which could be delegated. Each information had to be considered and each summons had to be individually authorised either by a justice of the peace or by the clerk to the justices acting as a justice of the peace because they were the only persons empowered by s1 of the 1952 Act and r 3 of the 1970 rules to act in that regard. Furthermore, the summons could not be issued on the authority of anyone except the particular justice of the peace or clerk to the justices who had considered the particular information on which it was based. It followed that the practice adopted in the magistrates’ court was wrong and that the information against the applicants had not been validly laid before the expiry on 16th February 1979 of the time limit imposed by the 1955 Act for the institution of proceedings. Accordingly, on 15th June 1979 the justices had had no jurisdiction to adjudicate on the information and their decision would be quashed (see p 1031 e, p 1032 g to j and p 1033 d to j, post).

Page 1028 All England Law Reports [1981] 1 AII ER

Dixon v Wells (1890) 25 QBD 249 and R v Brentford Justices, ex parte Catlin [1975] 2 AII ER 201 considered.

a. Per Curiam. There are some ways in which the task of justices and their clerks can be legitimately lightened by suitable administrative assistance; for example, batches of informations having similar characteristics, such as those emanating from offices of specialist prosecutors, such as trading standards officers, can be placed before a single individual, and unusual informations, either in terms of the nature of the offence or of the facts alleged, can be identified by assistants to the clerk to the justices and placed before him or before specially qualified or experienced justices for consideration. Once the bundles of informations and summonses have been considered by a justice of the peace or by the clerk to the justices, authority can be given for others to affix the signature of the person who has considered the informations and authorised the issue of the summons (see p 1033 j to p 1034 b, post).

c. Notes
For the issue of a summons on the laying of an information, see 29 Halsbury’s Laws (4th Edn) para 321, and for cases on the subject, see 33 Digest (Repl) 208, 460-461.
For the Magistrates’ Courts Act, s 1, see 21 Halsbury’s Statutes (3rd Edn) 185.
For the Justices’ Clerks’ Rules 1970, r 3, see 13 Halsbury’s Statutory Instruments (Third Reissue) 77.

d. Cases referred to in judgment
Dixon v Wells (1890) 25 QBD 249, 59 LJMC 116, 62 LT 812, 54 JP 725, 17 Cox CC 48, DC, 33 Digest (Repl) 208, 460.
R v Brentford Justices, ex parte Catlin [1975] 2 AII ER 201, [1975] QB 455, [1975] 2 WLR 506, 139 JP 516, DC, Digest (Cont Vol D) 631, 476a.

e. Case also cited
R v Fairford Justices, ex parte Brewster [1975] 2 AII ER 757, [1976] QB 600, DC.

f. Applications for judicial review
R v Gateshead Justices, ex parte Tesco Stores Ltd
Tesco Stores Ltd applied with the leave of the Divisional Court of the Queen’s Bench Division given on 28th November 1980 for an order of certiorari to quash the order of the Gateshead Magistrates’ Court made on 15th June 1979 convicting the applicant on an information laid by Mr Peter Parkes on behalf of the Gateshead Borough Council alleging that the applicant had committed an offence under s 2 of the Food and Drugs Act 1955. The facts are set out in the judgement of the court.

R v Birmingham Justices, ex parte D W Parkin Construction Ltd and others
D W Parkin Construction Ltd, Denis William Parkin and John Taylor applied, with the leave of the Divisional court of the Queen’s Bench Division given on 1st November 1979, for an order of the certiorari to quash the adjudication of the Birmingham Magistrates’ court on 2nd October 1979 whereby the company was convicted and fined £1 for the offence on 19th January 1977 of failing to pay a Class 1 contribution under the Social Security Act 1975 in respect of an employee earner in its employment, contrary to s 146 of that Act, and was ordered (i) to pay £35.46 under s 150 of the 1975 Act in respect of the unpaid contribution which was the subject of the offence and (ii) to pay £24,472.47 under s 151 of the 1975 Act in respect of its failure to pay other contributions due under that Act. The facts are set out in the judgement of the court.

Page 1029 QBD R v Gateshead Justices (Donaldson LJ)

a. W R H Crowther QC and David Paton for Tesco Stores Ltd.
M K Lee for D W Parkin Construction Ltd and its co-applicants.
Roger Henderson QC for Gateshead borough council.
Simon D Brown for the Department of Health and Social Security.
Richard Wakerley for the Gateshead and Birmingham justices.

Cur adv vult

b. 26th February. DONALDSON LJ read the following judgment of the court: The judgment which I am about to read is that of the court. On 19th January 1977 D W Parkin Construction Ltd fialed to pay a Class 1 contribution due under the Social Security Act 1975 in respect of a Mr Brian King and, in consequence, on 2nd October 1979 the company was convicted by the Birmingham justices of an offence contrary to s 146 of that Act.

c. On 17th August 1978 Mrs Eileen Thomas went to the supermarket of Tesco Stores Ltd in Ellison Street, Gateshead, and was sold a packet of biscuits. One of the biscuits contained a cigarette filter tip and, in consequence, on 15th June 1979 Tescos were convicted by the Gateshead justices of an offence under the Food and Drugs Act 1955.

d. The common factor between these cases may not be readily apparent. It is an allegation that in neither case had the justices any jurisdiction to adjudicate because at no material time were the information laid before a person authorised to consider them. We say ‘at no material time’ because R v Brentford Justices, e parte Catlin [1975] 2 AII ER 201, [1975] QB 455 is authority for the proposition that the appearance of the defendant before the court can and usually will remedy any prior deficiencies with regard to the laying of an information or the making of a complaint or the issue of a summons, since the production of the purported summons to the magistrate in court will usually itself meet the requirements for laying an information or making a complaint, and the presence of the defendant renders the summons unnecessary. But this is not true where, as in the instant cases, the defendant first appears before the court after the expiry of the time limited by statute for the laying of the information.

f. In the case of D W Parkin Construction Ltd, the relevant statutory provision was s 147 of the Social Security Act 1975; the time limit was 12 months from the date of the offence and this expired on 18th January 1978, whereas the appearance before the justices was on 2nd October 1979. In the case of Tesco Stores Ltd, the time limit was six months from the date of the offence and this expired on 16th February 1979, whereas the appearance before the justices was on 15th June 1979.

g. Both companies now apply for judicial review and for orders quashing their respective convictions. In the case of D W Parkin Construction Ltd, two directors, Mr Denis Parkin and Mr John Taylor, join in the application because the conviction of the company may expose them to personal liability to pay arrears of national insurance contributions due from the company and amounting to no less than £24,507.93.

h. D W Parkin Construction Ltd
On 15th December 1977 Mr Brian Thomas of the Department of Health and Social Security delivered a written information to the Birmingham Magistrates’ Court alleging the offence under the Social Security Act 1975. It is not certain who considered it. The information itself bears the facsimile signature of Mr Mountford, the clerk to the Birmingham justices, but this is not of itself indicative of the fact that it was ever considered or seen by Mr Mountford. Mr Mountford’s account of the matter is as follows:

j. ‘… I am satisfied that Mr Brian Thomas applied to the Court Clerk responsible for the issue of process on the 15th December 1977, for the sole purpose of laying this information. Whether this information was later submitted to me, I do not know. My attention is given to some information, others are dealt with by senior members of staff on my instructions. However, irrespective of whether I personally considered this information; or whether it was considered

Page 1030 All England Law Reports [1981] 1 AII ER

a. by a senior and competent member of my staff acting under my specific direction, authority, and control, followed by the signing of the information (by way of affixing the facsimile of my signature, whether by me or a senior officer authorised on behalf by me) in my opinion it is correctly laid. Following the Brentford Justices ex parte Catlin decision, I was advised that the procedure of granting process which we now operate is legally correct, and in my opinion this information is in order.’

b. In saying that he was so advised, Mr Mountford was referring to a circular issued in 1975 by the council of the Society of Justices’ Clerks. This circular, so far as is material, provided as follows:
c. ‘… every information must, at the very least, be examined to ascertain: – (i) that an offence known to law is alleged, and (ii) that it is not out of time, and (iii) that the court has jurisdiction, and (iv) that the informant has any necessary authority to prosecute. This examination of every information and the subsequent action to complete the grant of process may be done in one of four ways: –
d. ‘Grant of summons by a justice of the peace or the justices’ clerk. – (a) by a justice personally with the justices’ clerk or a well-qualified assistant to assist him; or (b) by the justices’ clerk personally; or (c) by a justices’ clerk and states formally that they are in order, so the justice or justices’ clerk can formally receive the informations and authorise the grant of process; the process will either be signed by the justices or justices’ clerk, or the assistant will be given authority to affix the facsimile signature stamp of the justice or justices’ clerk; or
e. ‘Grant of summons by the justices’ clerk only. – (d) by a senior and competent justices’ clerks’ assistant (the assistant shall sign in the name of the clerk or affix a facsimile or the clerk’s signature to the summons) acting without the immediate personal involvement of the justices’ clerk, but only under his specific direction, authority and control.’

Tesco Stores Ltd
f. On 6th February 1979 the director of legal services for the borough council of Gateshead posted an information to the clerk to the Gateshead justices. This was collected from the post office on 7th February by Mr T Cook. Mr Cook was a junior assistant of the clerk to the justices, Mr John Griffiths. What happened next was the subject of an investigation by Mr Griffiths. He was faced with the problem that this was merely one of many informations, but we accept his conclusions as being likely to be correct. He says that the information would have been given to a Mr J White on the same day. Mr White was the listing officer and one of Mr Griffiths’s senior assistants, specially authorised by him to examine and to accept or reject information on Mr Griffiths’s behalf. Mr White considered the information and decided that it was in order. He then passed it to another of Mr Griffiths’ assistants, Mr C Smith for him to type and issue the summons. It is impossible to say quite when Mr White considered the information, but it must have been on or before 16th February 1979, because thereafter he was on leave. In the normal course of events he would have noted the date on the information, but this was omitted in this instance.

j. By an unfortunate accident Mr Smith when issuing the summons showed the information as having been laid on 19th February 1979, that being the date when he received the information and thereafter he changed this to 6th February 1979, which was the date on which it was signed by the director of legal services. Clearly neither date is correct since an information is laid when it is considered by a person authorised to do so. The only relevance of the fact that wrong dates were mentioned is that it put Tescos on inquiry and these proceedings ensued.

Mr Griffiths, like Mr Mountford, relied on the circular from the council of the Society of Justices’ Clerks in establishing this procedure for dealing with information.

Page 1031 QBD R v Gateshead Justices (Donaldson LJ)

a. The laying of informations and the issue of summonses
We now turn to consider the problem which is central to these applications, namely before whom may information be laid and who is empowered to decide whether or not to issue summonses.
Section 1 of the Magistrates’ Courts Act 1952, so far as material, provides as follows:

b. ‘Issue of summons to accused or warrant for his arrest. – (1) Upon an information being laid before a justice of the peace for any county that any person has or is suspected of having committed an offence, the justice may, in any of the events mentioned in subsection (2) of this section – (a) issue a summons directed to that person requiring him to appear before a magistrates’ court for the county to answer to the information…
c. (2) A justice of the peace for a county may issue a summons or warrant under this section – (a) if the offence was committed or is suspected to have been committed within the county; or (b) if it appears to the justice necessary or expedient, with a view to the better administration of justice, that the person charged should be tried jointly with, or in the same place as, some other person who is charged with an offence, and who is in custody, or is being or is to be procede against within the county; or (c) if the person charged resides or is, or is believed to reside or be, within the county; or (d) if under any enactment a magistrates’ court for the county has jurisdiction to try the offence; or (e) if the offence was committed outside England and Wales … Provided that where the offence charged is not an indictable offence – (i) a summons shall not be issued by virtue only of paragraph (c) of subsection (2) of this subsection…’

e. In 1952 there was no other authority for anyone to consider informations or complaints or to issue summonses. The wording of the section ‘may … issue a summons’ and ‘if it appears to the justice necessary or expedient with a view to the better administration of justice’ makes it clear that the power was discretionary and that the discretion had to be exercised by the justice acting judicially and therefore personally, since the judicial function can never be delegated.

f. This is in line with the law as it was prior to the enactment of the 1952 Act. In Dixon v Wells (1890) 25 QBD 249 a summons was held to be invalid when the complaint was considered by two justices and the summons was signed by a third justice who had not considered the complaint. It is not uninteresting in the context of the present applications to find Lord Coleridge CJ saying (at 254):

g. ‘It is said that it has become a general practice for the magistrates’ clerk to hear complaints without any written or other information, fill up a form of summons, obtain the signature of any magistrate, and so cause a man to be summoned, and perhaps exposed to a heavy penalty, although the magistrate signing the summons may not have ascertained whether there was a prima facie case against the person summond. If it be, indeed, the practice to sign a summons without hearing an information, and for one person to hear the information and another to sign the summons, a practice more loose or likely to lead to injustice, especially in matters relating to perishable articles which require to be dealt with quickly, I can hardly conceive. In the present case, if the magistrate who signed the summons had heard the information, he might have thought that no prima facie case had been made out, and have declined to issue the summons.’

j. The same point was made in R v Brentford Justices, ex parte Catlin [1975] 2 AII ER 201 at 207, [1975] QB 455 at 464 by Lord Widgery CJ. He said:
‘It must however be remembered that before a summons or warrant is issued the information must be laid before a magistrate and he must go through the judicial exercise of deciding whether a summons or warrant ought to be issued or not. If a magistrate authorises the issue of a summons without having applied his mind to

Page 1032 All England Law Reports [1981] 1 AII ER

a. the information then he is guilty of dereliction of duty and if in any particular justices’ clerk’s office a practice goes on of summonses being issued without information being laid before the justice at all, then a very serious instance of maladministration arises which should have the attention of the authorities without delay.’

b. In 1970 a change was made. It may well be that this change was prompted by the increasing work load of the justices and that a further change is now due. However that may be, in 1970 the Lord Chancellor made the Justices’ Clerks’ Rules 1970, SI 1970 No 231. These rules were made under s 15 of the Justices of the Peace Act 1949 as extended by s 5 of the Justices of the Peace Act 1968.

c. The power under the 1949 Act was limited to making ‘rules for regulating and prescribing the procedure and practice to be followed in magistrate’s courts and by justices’ clerks’. A ‘justices’ clerk’ was defined by s 44, not very helpfully, as ‘a clerk to the justices for a petty sessions area’, but by Act, by s 20, also prescribed qualifications for new candidates for the office of a justices’ clerk as being those of a barrister or solicitor of not less than five years’ standing. Section 5 of the 1968 Act extended this power to –

d. ‘make provision enabling things authorise to be done by, to or before a single justice of the peace, to be done instead by, to or before a justices’ clerk; and any enactment or rule of law regulating the exercise of any jurisdiction or powers of justices of the peace, or relating to the exercise or purported exercise thereof by virtue of this subsection by the clerk to any justices as if he were one of those justices.’

Rule 3 of the Justices’ Clerks’ Rules 1970 was in the following terms;

e. ‘The things specified in the Schedule to these Rules, being things authorised to be done by, to or before a single justice of the peace for a petty sessions area may be done by, to or before the justices’ clerk for that area.’

The schedule provided:
f. ‘1. The laying of an information or the making of a complaint other than an information or complaint substantiated on oath.
‘2. The issue of any summons, including a witness summons…’

g. There are other provisions to which I need not refer.
For the applicants it is submitted that reading the rules with the enabling power, it is clear that the only person authorised to act as a justice of the peace, although he is not one, is the clerk to the justices for the area, ie Mr Mountford in relation to the Birmingham area and Mr Griffiths in relation to the Gateshead area. Furthermore, since the clerk is acting as a justice, he must act personally and cannot delegate any of his duties or discretions.

h. In parenthesis we should add that whilst there was power under s 19 of the Justices of the Peace Act 1949, and now under s 25 of the 1979 Act, to appoint more than one justices’ clerk for a particular area, each of whom would be the justices’ clerk for this purpose, no such appointment appears to have been made in the case of Birmingham and Gateshead areas.

i. An information is not ‘laid’ within the meaning of the Magistrates’ Courts Act 1952, and is certainly not ‘laid before a justice of the peace’ unless it is laid before and considered by either a justice of the peace or the clerk to the justices acting as a justice of the peace pursuant to the 1970 rules and, incidentally, no summons can be issued by any other person or without a prior judicial consideration by that person of the information on which the summons is based.

In the case of D W Parkin Construction Ltd, the information was ‘laid’ before and considered by one or other of two unidentified assistants of Mr Mountford, who were no

Page 1033 QBD R v Gateshead Justices (Donaldson LJ)

a. doubt senior and competent but were not the clerk to the justices, nor, so far as is known, even qualified for that office. In the case of Tesco Stores Ltd, the information was ‘laid’ before and considered by Mr White, to whom the same considerations apply. It follows, as the applicants submit, that the Birmingham and Gateshead justices acted without jurisdiction in trying the informations and that their decision should be quashed.

b. Three arguments to the contrary are advanced on behalf of the prosecutors and the justices. First, it is submitted that in reality the consideration of an information and the issue of a summons is normally a purely administrative function, and that it is only in an insignificant minority of cases that there is really anything to consider or any materials on which a judicial discretion could be exercised. We would accept that it is rare for the issue of a summons to be refused, but it does happen from time to time and rightly so. No doubt most prosecutions are brought by experienced and responsible prosecuting authorities, who are well aware of the requirements of the law and take pains to make sure that the informations are in order and that the cases are fit to be tried. But not all prosecutions are brought by experienced and responsible prosecuting authorities. And even in the case of such authorities, the requirement that a justice of the peace or the clerk to the justices acting as a justice of the peace shall take personal responsibility for the propriety of taking so serious a step as to require the attendance of a citizen before a criminal court is a constitutional safeguard of fundamental importance. We have no doubt that this function is judicial. We agree with that part of the advice of the council of the Society of Justices’ Clerks which affirms that every information must at the very least be examined to ascertain: (i) that an offence known to law is alleged, (ii) that it is not out of time, (iii) that the court has jurisdiction, and (iv) that the informant has any necessary authority to prosecute. This is not an administrative function and still less is it a purely clerical function which is really what is implied in this submission.

e. Second, it is submitted that since s 19 of the Justices of the Peace Act 1949 contemplates that the clerk to the justices shall have a staff who should work under his direction and s 118 of the Magistrates’ Cours Act 1952 contemplates that there may be more than one clerk to the justices for a petty sessional area, one being treated as the deputy to the other, the statutory framework clearly involves a degree of delegation by the clerk. We agree, but the clerk has many non-judicial duties and, in the absence of the clearest possible words, there is no reason whatsoever for concluding that he alone in the whole judicial system is empowered to delegate his judicial functions.

g. Third, it is submitted that if the applicants are correct in their submissions, the administration of justice will grind to a halt because justices and clerks to justices, if unassisted, cannot possibly process the number of informations and complaints now being laid and made. In this context we were referred to evidence given to the Royal Commisson on Criminal Procedure, which suggests that in some parts of the country the process of delegation has been taken to the point where there is a degree of integration between the police and the staff of magistrates’ courts, the police preparing the paperwork not only in connection with the informations laid by them but also in relation to the corresponding summonses.

h. The short answer to this is that if the practice is unlawful, expedience will not make it lawful. Fiat justitia ruat coelum. The long answer is that we doubt whether the system would grind to a halt, although it would undoubtedly be subjected to severe strain. Although each information must be considered and each summons must be authorised individually by a justice or by the justices’ clerk, or, where more than one, by one of the justices’ clerks, and each must bear the signature of the person who considered the information, their task can be considerably lightened by suitable administrative assistance. Thus batches of informations having similar characteristics, eg those emanating from the offices of specialist prosecutors such as trading standards officers, can be assembled and placed before a single individual, thus lightening the task of consideration. Again unusual informations, either in terms of the nature of the offence or of the facts alleged, can be identified by assistants to the clerk to the justices and placed

Page 1034 All England Law Reports [1981] 1 AII ER

a. before him or before specially qualified or experienced justices for consideration. And the task of signing can be performed vicariously by the use of a facsimile signature on a rubber stamp (R v Brentford Justices, ex parte Catlin). Bundles of informations and summonses can be considered by a justice or by the clerk to the justices and, thereafter, authority can be given for others to affix the signature of the person who has considered the informations and authorised the issue of the summonses.

b. The advice given by the council of the Society of Justices’ Clerks was, we are told, approved informally before it was issued, and until these applications were made there was no suggestion that it was misconceived. In the circumstances it was natural that the clerks to the Birmingham and Gateshead justices should have organised their offices in the way revealed by these applications and we do not doubt that many, and possibly most, other clerks to justices do likewise, particularly in petty sessional divisions with a large case load. But that said, we have no doubt that this advice was misconceived and should no longer be followed.

c. One other thing should be said. Our judgement, if accepted, or affirmed on any appeal, must lead to a major reorganisation in the practices of magistrates’ courts, but this is not to say that many or any defendants other than the applicants can complain that they were convicted without jurisdiction. Such a complaint could only be made where the defendant appeared before the court after the expiry of the time limit for trying an information, and then only if it appeared that the information had not in fact been considered by a qualified person. It will be difficult, if not impossible, now to discover whether this was the case unless, as happened here, those who complained took the point on the occasion of their appearance in court.

Orders of certiorari granted; decisions of the justices quashed.

e. Solicitors: Alsop, Stevens, Batesons & Co (for Tesco Stores Ltd); Sidney Mitchell & Co (for D W Parking Construction Ltd and its co-applicants); Sharpe, Pritchard & Co, agents for Peter Parkes, Gateshead (for Gateshead borough council); Solicitor to the Department of Health and Social Security; Bail P Mellon & Co (for the Gateshead justices); F H Wilson (for the Birmingham justices).

Sepala Munasinghe Esq Barrister.