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Barry (R, on the application of) v Birmingham Magistrates Court [2009] EWHC 2571 (Admin)

Application for judicial review of refusal of district judge to issue a summons in a private prosecution under the Protection from Harassment Act. Application granted and matter sent for reconsideration.

The application arose out of disputed contact. The applicant, a father's rights campaigner, had himself been prosecuted for harassment as a result of breaches of contact arrangements. However he began his own prosecution after the mother had prevented the son from visiting one weekend. The district judge refused the summons primarily because the applicant had not complained to the police.

In this hearing the applicant argued that as a matter of law he did not have to make a complaint before initiating the prosecution.  Cranston J reviews the relevant case law and the historical background of private prosecution. He concludes by agreeing with the applicant that the judge had erred in taking into account the lack of police complaint.

Neutral Citation Number: [2009] EWHC 2571 (Admin)

Royal Courts of Justice
London WC2A 2LL

Friday, 2 October 2009a
B e f o r e:


BARRY (Claimant)



Computer Aided Transcript of the Stenograph Notes of 
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1. MR JUSTICE CRANSTON:  In this application for judicial review Mr Barry challenges the decision of District Judge Qureshi on 19 May 2009 to refuse to issue a summons against his ex wife Elizabeth Barry.  The matter came before Mr Justice Wynn Williams in July, who granted permission.  Mr Barry appeared before us today in person.  He is a father's rights campaigner.  He advanced his arguments clearly, skilfully and with moderation.  The defendant did not appear.

2. The background, in brief, is as follows.  Mr Barry has been involved in an ongoing dispute in relation to contact with his three children which seems to have begun in 2000.  It is, sadly, a very bitter dispute.  Mr Barry has been arrested on a number of occasions.  For example, in July 2001 he was arrested in relation to a possible breach of the peace but was subsequently released with no action being taken.  In February 2008 he was arrested and prosecuted for harassment of Elizabeth Barry.  He denied the charge.  Subsequently he was acquitted by District Judge Qureshi in May 2008.  As a result, he sought to have the police investigate his ex wife for possible harassment and an attempt to pervert the course of justice.  The police ultimately refused to take the matter further.  By the time he was informed of this it was too late for him to institute a private prosecution because of the time bar.

3. Early this year three incidents occurred.  The first was in February and involved an arrangement which Mr Barry had with his 15 year old son.  His son had had pain in his knee for some time.  Mr Barry had booked him an appointment with the doctor.  The son subsequently attended physiotherapy.  Mr Barry e.mailed his son to ask how the appointment had transpired.  On Mr Barry's account, his son does not regularly look in his e.mail in box.  As a result, he called at the flat where he lives with his mother and spoke to his son via the intercom and told him to look into his in box since he (Mr Barry) had sent his son an e.mail.  As a result, Elizabeth Barry sent an e.mail to Mr Barry threatening to report him to the police for harassing her if he did this again. 

4. Then there was a second incident.  In mid March the son   because of his knee injury   had been unable to play sports but was able to play golf.  Mr Barry e.mailed Elizabeth Barry, asking whether his son could stay two hours longer the following day so as to play a game of golf.  Mr Barry received no reply which, on his account, disturbed the weekend he had with his son. 

5. The third incident was at the end of March.  Mr Barry had made arrangements whereby a French exchange student was to stay with him.  He had gone to some trouble to arrange that weekend, attending the school briefing session for parents, arranging a barbeque and a skittles evening at his home with some friends to coincide with the visit.  His son informed him that his mother was making plans of her own for that weekend and the son did not think she would allow him to come.  Mr Barry e.mailed Elizabeth Barry that the son was due to come to him that weekend and that he had made plans, and asking her to confirm that he would attend.  He received no reply.  Instead Elizabeth Barry   on Mr Barry's account   had the son e.mail him just three days before the visit saying that he would not be coming.  On Mr Barry's account this led to the belittling of him in the eyes of his friends and, more importantly, in the eyes of his own children. 

6. These were matters that were incorporated into affidavits and placed before District Judge Qureshi who heard the application for a summons on 19 May 2009.  District Judge Qureshi had been assigned to hear the matter because he had heard the earlier prosecution.  The judge refused to issue a summons and then refused to state a case.  In the course of his refusal to state a case, the judge sets out his reasoning.  It turned on the fact that Mr Barry had not made a complaint to the police.  Specifically the learned judge said this:

"In my judgment it is not open to Mr Barry merely to prepare an affidavit and allege this forms the basis of a criminal charge of harassment against his ex wife.  It has not been investigated and she has not been interviewed.  He clearly has problems with certain police officers who have had many dealings with him in Wolverhampton, both in respect of the last trial and his activities of protesting for Fathers for Justice whilst dressed as Spiderman ..... If he is not under a minimal obligation to at least make a complaint to the police and see what they do about it, then in my opinion this would open the floodgates whereby individuals will begin private prosecutions instead of asking the police to do it.  There must be public policy considerations that underline the issue of private prosecutions.  The Crown Prosecution Service was formed in 1986 in order to provide a prosecution service independent of the police.  It would be entirely different if he reported the matter to the police and they failed to do anything with it."

The legal framework
7. The issue of a summons is one means of initiating criminal proceedings.  Under the Magistrates' Court Act 1980, section 1, on an information being laid before a justice of the peace that a person has or is suspected of having committed an offence, the justice may issue a summons directed to that person.  The issue of a summons is a judicial function although it does not normally involve conducting any sort of preliminary hearing.  It is a task which is often conducted in a straightforward manner.  The discretion is not unfettered.  The general principle is, as stated in Stone's Justices' Manual, that the magistrate ought to issue a summons pursuant to an information properly laid unless there are compelling reasons not do so where, for example, there is an abuse of process or impropriety involved.  There have been repeated statements by judges of this court that although justices ought to protect their process from abuse, they have no power to stay an otherwise regular prosecution. 
8. The approach which judges must adopt in the issue of a summons was authoritatively stated by Lord Widgery CJ in R v West London Metropolitan Stipendiary Magistrate [1979] 1 WLR 933.  At pages 935 H to 936 B, Lord Widgery CJ said that the justice, in considering the application, should ascertain whether the allegation is of an offence known to law and, if so, whether the essential ingredients of the offence are prima facie present.  The issue of time is another consideration which must be addressed, as must the jurisdiction of the court to issue the summons.  The justice should consider whether the allegation is vexatious:

"Since the matter is properly within the magistrate's discretion it would be inappropriate to attempt to lay down an exhaustive catalogue of matters to which consideration should be given.  Plainly he [the justice] should consider the whole of the relevant circumstances. 

In the overwhelming majority of cases the magistrate will not need to consider material beyond that provided by the informant.  In my judgment however he must be able to inform himself of all relevant facts."

9. Historically all prosecutions in England were private prosecutions.  The vast majority now are instituted by public authorities, notably the Crown Prosecution Service.  However the right to institute a private prosecution is retained in the Prosecution of Offences Act 1985, section 6 (1).  Almost invariably a private prosecutor will have a personal interest in the outcome of a case.  That will be either an individual who seeks to use the criminal courts in a private dispute with other individuals, or in a case such as brought by the RSPCA, an interest group dedicated to suppressing certain forms of criminal behaviour.  To say that such persons have a personal interest does not assume any lack of integrity or bad faith on their part. 
10. There is high authority that a private prosecution is a valuable safeguard against misbehaviour by official prosecuting authorities (Gouriet v Post Office Workers [1978] AC 435, at 497 H to 498 B, per Lord Diplock).  More recently however the House of Lords expressed greater scepticism about private prosecutions in Jones v Whalley [2006] UKHL 41, [2007] 1 AC 63, 9.  Notably in that case Lord Rodger of Earlsferry said:

"24 Nowadays public prosecutions are the rule.  So, usually, the court will be concerned to prevent its process being misused by a public prosecutor.  But, in times gone by, when private prosecutions were the rule, the court must have had the power to guard against the corresponding danger of its process being misused by a private prosecutor."

(See also Lord Bingham at paragraph 16 and Lord Carswell at paragraph 32.) 

Mr Barry's submissions
11. In the present case Mr Barry submits that a magistrate must act judicially in considering a summons but that this is not a demanding requirement.  If there is an abuse of process or vexatious behaviour the Director of Public Prosecutions under section 6 (2) of the Prosecution of Offences Act 1985 may take over the conduct of a private prosecution and discontinue it.  Alternatively it is possible for the court itself to stay a prosecution on the basis of abuse of process.  Mr Barry submits that in this case the approach of District Judge Qureshi was flawed in public law terms in that he took into account an irrelevant factor in considering his application, namely whether or not he, Mr Barry, had complained to the police. 

12. As a factual matter, Mr Barry contends that he had complained to the police in the past.  He had done that in relation to the harassment which he said arose in 2008 and led to his prosecution.  Ultimately he was acquitted.  Given the background of his interactions with the police in Wolverhampton, it would not have been worthwhile for him to complain to the police on this occasion.  Moreover Mr Barry submits that the district judge was incorrect in requiring him to have complained to the police.  There is no requirement in the law that he should do so underlined, in Mr Barry's submission, by the fact that bodies such as the RSPCA bring private prosecutions without first complaining to the police.  There is, Mr Barry contends, the constitutional right to which Lord Diplock referred.  The court's essential role is to ensure that the application in a proper case is not vexatious, that there is an offence known to law and the essential ingredients of the offence are present.  In this case, he contends, all those criteria were met.  Apart from the fact that he had not complained to the police, no other reason for refusing the summons was given by the district judge. 

13. In my judgment there is no requirement for a person seeking to have a summons issued to approach the police first.  In making a decision as to whether a summons should be issued, the justice has a discretion, albeit not an unfettered discretion.  As Lord Widgery put it, he "should consider the whole of the relevant circumstances" and "must be able to inform himself of all relevant facts."  In a particular case it may be a relevant circumstance whether or not the person seeking a summons has approached the police.  The failure of the police to proceed in a particular case may demonstrate that it is hopeless.  However inasmuch as the district judge suggested that it is an invariable requirement that the person take the matter first to the police, then in my view that is wrong in law.  Thus the district judge took into account an irrelevant consideration in Mr Barry's application.  On that basis I would conclude that his decision is flawed in public law terms. 

14. In this case the district judge, as Mr Barry himself concedes, might well have decided that the essential ingredients of the offence were prima facie absent.  I note that under the Protection from Harassment Act 1997, section 1, the offence requires that a person must not pursue a course of conduct which amounts to harassment of another and which he knows or ought to know amounts to harassment of the other.  In section 1 (2) Parliament has said that for the purposes of the section:

"(2) ..... the person whose course of conduct is in question ought to know that it amounts to or involves harassment of another if a reasonable person in possession of the same information would think the course of conduct amounted to or involved harassment of the other."

In this case the district judge might have decided that those three incidents I have described from earlier this year came nowhere near constituting harassment under section 1.  However he did not direct his mind to that particular issue but decided the application on the absence of a complaint to the police. 

15. For the reasons I have given I conclude that Mr Barry has made out his case and that we ought to find that the district judge breached public law principles.


17. Mr Barry, we grant you judicial review.  The matter will have to be reconsidered by the magistrate.