Neutral Citation Number: [2010] EWHC 935 (Admin)
Case No: CO/15948/2009
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Leeds Combined Court Centre
1 Oxford Row, Leeds, LS1 3BG

Date: 30 April 2010

Before:

LORD JUSTICE MUNBY
MR JUSTICE KEITH
- - - - - - - - - - - - - - - - - - - - -
Between:

	R (MICHAEL CRAIK, Chief Constable of Northumbria Police) 	Claimant	
	- and -		
	NEWCASTLE UPON TYNE MAGISTRATES’ COURT	Defendant	
	- and -		
	(1) SIMON JASON PRICE
(2) MICK ROSE and nine others	Interested Parties	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Mr John McGuinness QC (instructed by the Director of Legal Services, Northumbria Police) for the Claimant
The Defendant and the Interested Parties were neither present nor represented

Hearing date: 26 April 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment

Lord Justice Munby : 

1.	This is an application for judicial review by Michael Craik, the recently retired Chief Constable of Northumbria Police, who seeks to challenge various decisions of District Judge (Magistrates’ Court) Earl sitting in Newcastle upon Tyne Magistrates’ Court culminating in his decision on 17 December 2009 pursuant to section 51 of the Crime and Disorder Act 1998 to send the Chief Constable for trial at Newcastle upon Tyne Crown Court for an offence of unlawfully imprisoning one Simon Jason Price between 24 and 27 September 2009.
The facts
2.	In the small hours of 25 September 2009 Mr Price was arrested by officers of the Northumbria Police acting on information from Sussex Police that he was wanted for an alleged offence of obtaining goods by false representation. He was conveyed to Bedlington Police Station, where he was formally arrested and placed in detention at 4.11am. In accordance with section 40(3)(a) of the Police and Criminal Evidence Act 1984, his detention was required to be reviewed not later than 10.11am unless lawfully postponed in accordance with section 40(4). In fact the review did not take place, so it would seem, until some unspecified time between 11.30am and 12.20pm. 
3.	Given the course the proceedings have taken there is no need to examine the subsequent events of that or the next day, save to record that Mr Price was delivered into the custody of officers to be taken to Sussex at 4.50am on 26 September 2009.
The proceedings in the Magistrates’ Court
4.	On 9 October 2009 Mr Price appeared in person before District Judge Earl indicating that he wished to bring a private prosecution against Northumbria Police for falsely imprisoning him at Bedlington Police Station. In the affidavit which he swore for the purpose of the judicial review proceedings on 16 February 2010, District Judge Earl records Mr Price as stating that: 
“he really wanted an apology and recompense for his out of pocket expenses and that he had been rebuffed in this regard. Thus he was seeking to issue proceedings against the police. He indicated that he wanted Northumbria Police to be notified and did not object to them being invited to attend the application hearing. Indeed, he welcomed it as it would give him the chance to discuss a resolution without proceedings.”
That account has not been challenged by Mr Price. 
5.	The case was accordingly re-listed before District Judge Earl on 29 October 2009. Mr Price was legally represented, as were Northumbria Police. The draft information laid on behalf of Mr Price identified the proposed defendants as “Chief Constable Mike Craik and Others”. It was supported by a witness statement by Mr Price dated 19 October 2009. In this he made a number of allegations which there is no need for me to rehearse. For the draft information made clear, and was correctly understood by District Judge Earl as indicating, that Mr Price’s complaint was based on the failure to review his detention within the six hours mandated by section 40(3)(a) of the Police and Criminal Evidence Act 1984, with the consequence, so Mr Price asserted, that he had been falsely imprisoned from 10.11am onwards – an assertion which he sought to support by reference to Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662.   
6.	There seems to have been a misunderstanding between the District Judge and the representative of Northumbria Police, the District Judge believing that he had specifically asked whether the Chief Constable was the appropriate person against whom to issue proceedings, and having been told that he was, and the representative of Northumbria Police believing that all he had been asked was the narrower question whether the way in which the Chief Constable had been described in the draft information was correct. In my judgment nothing turns on the point. What matters is that, in the upshot, the District Judge expressed himself as satisfied that an offence of false imprisonment had been made out, allowed the draft information to be laid, as re-drafted to identify the sole defendant as “The Chief Constable of Northumbria Police”, and directed the issue of a summons to the Chief Constable returnable on 2 December 2009. The summons was issued on 5 November 2009.
7.	On 2 December 2009 the matter came before a bench of lay Justices. Mr Price appeared in person seeking an amendment to include the name of the Chief Constable and the names of ten other officers who, he said, he wished to prosecute in relation to the events at Bedlington Police Station. The Chief Constable’s representative sought an adjournment until 17 December 2009 which the Justices granted.
8.	Mr Price appeared again before District Judge Earl on 4 December 2009, laying informations against the ten other officers and applying for the issue of summonses against all of them. The District Judge acceded to Mr Price’s application and summonses were subsequently issued against all ten officers with a return date of 17 December 2009.
9.	On 10 December 2009 a skeleton argument dated 9 December 2009 prepared on behalf of the Chief Constable by Mr John McGuinness QC was sent to the Magistrates’ Court in support of an application that the proceedings against the Chief Constable be stayed as an abuse of the process.
10.	The matter came before District Judge Earl on 17 December 2009. Mr McGuinness was not present but the Chief Constable’s representative deployed his skeleton argument in support of the application for a stay. Again, there seems to have been a misunderstanding between the District Judge and the representative of Northumbria Police, the latter believing that the District Judge had said that he had no power to hear the application for a stay, and the District Judge’s recollection being that he had accepted that he had jurisdiction though declining to exercise his discretion in favour of the Chief Constable. Again, in my judgment, nothing turns on the point. What matters is that, in the upshot, the District Judge declined to stay the proceedings and, in accordance with section 51 of the 1998 Act, sent both the Chief Constable and the ten other officers for trial at the Crown Court, listing the case for a preliminary hearing in the Crown Court on 14 January 2010.  
The judicial review proceedings
11.	The Chief Constable’s application for judicial review against Newcastle upon Tyne Magistrates’ Court was issued on 31 December 2009 in Leeds. It sought quashing orders in relation to each of the District Judge’s decisions (1) on 29 October 2009 to issue the summons against the Chief Constable, (2) on 17 December 2009 ruling, so it was said, that the court had no jurisdiction to consider the Chief Constable’s submission that the proceedings were an abuse of the process, and (3) also on 17 December 2009 sending the Chief Constable to the Crown Court for trial. Mr Price was named as an interested party, as were the ten other officers against whom the District Judge had also issued summonses. 
12.	The Chief Constable also sought by way of interim relief an order that any proceedings in the Crown Court against him be stayed pending the outcome of the judicial review proceedings. On 6 January 2010 His Honour Judge Behrens, sitting as a Judge of the High Court in Leeds, stayed the Crown Court proceedings against the Chief Constable pending determination of the application for permission. 
13.	No acknowledgement of service or other response having been received from either the Magistrates’ Court or any of the interested parties, on 16 February 2010 permission was granted by His Honour Judge Roger Kaye QC, sitting as a judge of the High Court. He extended the order earlier made by Judge Behrens until further order.
14.	On 17 February 2010, and out of time, the District Judge filed a formal acknowledgement of service accompanied by the affidavit sworn by him on 16 February 2010 to which I have already referred.
15.	On 17 March 2010 Blair J gave directions, including a direction that the matter be heard by a Divisional Court. By letters each dated 6 April 2010 notice was given to the interested parties that the hearing had been fixed for 26 April 2010. 
16.	When the matter was called on before us the Chief Constable was represented by Mr McGuinness. None of the interested parties was either present or represented; none of them had filed any acknowledgement of service or other response or any evidence.
The law – false imprisonment
17.	False imprisonment is a common law offence, defined as consisting in “the unlawful and intentional or reckless restraint of a victim’s freedom of movement from a particular place”: R v Rahman (1985) 81 Cr App R 349 at page 353. Proof of mens rea is thus required, albeit the offence is one of ‘basic’ intent: R v Hutchins [1988] Crim LR 379.
18.	Being a common law offence, false imprisonment is triable only on indictment and section 51 of the 1998 Act therefore applies.
The law – the powers of the District Judge
19.	So far as is material for present purposes the relevant legal principles can be summarised in the following incontestable propositions:
i)	The decision of a magistrate to issue a summons involves the exercise of a judicial function, from which it follows that a magistrates’ court has a discretion to refuse to issue a summons where the proceedings would be vexatious, improper or for some other reason an abuse of the process of the court: see for recent statements of the principles R v Belmarsh Magistrates’ Court ex p Watts [1999] 2 Cr App R 188 at page 195 and R (Mayor & Burgesses of London Borough of Newham) v Stratford Magistrates’ Court [2004] EWHC 2506 (Admin) at paras [3], [15]-[16].
ii)	It is an abuse of the process to issue proceedings with an ulterior motive, for example with a view to the prosecutor clearing his name rather than bringing alleged criminals to justice: ex p Watts at page 199.
iii)	If the magistrates’ court would have had power to refuse to issue a summons on the ground that the proceedings were vexatious or an abuse of the process, then the court equally has jurisdiction to stay the proceedings at a later stage: ex p Watts at page 196.
iv)	The duty of the court under section 51 of the 1998 Act to send a case to the Crown Court does not preclude it from exercising its jurisdiction to stay proceedings as an abuse of the process, though it will very rarely be appropriate to do so: R (Salubi and another) v Bow Street Magistrates’ Court etc [2002] EWHC 919 (Admin), [2002] 2 Cr App R 40 at para [20].
The Chief Constable’s case
20.	Before us, as in his skeleton of 9 December 2009 put before the District Judge at the hearing on 17 December 2009, Mr McGuinness founded his submissions on the proposition that the proceedings against the Chief Constable were, as he put it in that skeleton argument, “entirely misconceived.” I agree with that characterisation of the proceedings.
21.	Mr McGuinness submitted that, even taking everything alleged by Mr Price at its highest, and even assuming, though without necessarily conceding, (a) that there had been a failure at Bedlington Police Station to carry out the review required by section 40(3)(a) of the 1984 Act, (b) that those responsible at Bedlington Police Station were accordingly liable in damages for the tort of false imprisonment in accordance with Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662 (in which event Mr McGuinness accepts that the Chief Constable would be vicariously liable for that tort by virtue of section 88(1) of the Police Act 1996) and (c) that those responsible at Bedlington Police Station were also guilty of the criminal offence of false imprisonment, there was nonetheless simply no criminal case, indeed could in law be no criminal case against the Chief Constable. On that footing, he submits, the proceedings were vexatious and an abuse of the process.
22.	Elaborating his submissions, and for this purpose I think it is helpful to see the way in which the point was put by him in the skeleton argument which was before the District Judge, Mr McGuinness submits, and in my judgment this cannot be gainsaid, that there was at all stages of the proceedings before the District Judge not the semblance of a suggestion that:
•	the Chief Constable (as a principal party) committed any act that constituted, or contributed to, the unlawful imprisonment or detention  of Mr Price;
•	the Chief Constable (as a secondary party) by any word or act aided, abetted, counselled, procured, encouraged or assisted any police officer to unlawfully imprison or detain Mr Price;
•	the Chief Constable was present at Bedlington Police Station during the period of Mr Price’s detention;
•	the Chief Constable was aware of Mr Price’s arrest and subsequent detention;
•	the Chief Constable was aware of any failure to conduct a review of Mr Price’s detention within 6 hours.
23.	In these circumstances, he submits, any assertion that the Chief Constable could be guilty as a principal is, and was, quite manifestly devoid of all merit. This is not a case where the evidence was weak. There was simply no evidence at all. I agree. 
24.	Mr McGuinness has helpfully taken us through the various ingredients that have to be established if someone is to be liable as a secondary party, that is, to adopt the language of section 8 of the Accessories and Abettors Act 1861, as someone who aids, abets, counsels or procures the commission of the offence. Although I am grateful to Mr McGuinness for his assistance, I need not rehearse the law on this point. Any assertion that the Chief Constable could be guilty as a secondary party (whether as aider, abettor, counsellor or procurer) is, and was, quite manifestly devoid of all merit. Again, this is not a case where the evidence was weak. There was simply no evidence at all.  
25.	The reality is that Mr Price was seeking to make the Chief Constable vicariously liable for the actions of his subordinates in circumstances where it is elementary that although a superior may at common law be vicariously liable for the torts of his subordinates there is, generally speaking, no doctrine of criminal vicarious liability at common law. 
26.	The authority for this is of respectable antiquity but none the worse for that. The case arose out of the death in the Fleet Prison in October 1725 of a prisoner, one Arne, who in September 1725 had been put by Barnes, one of the gaolers at the Fleet Prison, in a room in the prison “without fire, chamber-pot or close-stool, the walls being damp and unwholesome, and the room built over the common sewer”. Having been confined in these conditions Arne “by reason of his imprisonment in the said room sickened, and by duress thereof died” some 44 days later.
27.	Huggins, the warden [governor] of the Fleet Prison, was indicted and tried at the Old Bailey for Arne’s murder; for some reason Barnes seems not to have been indicted. The indictment against Huggins (summarised at (1730) 2 Str 883) alleged that as warden of the Fleet he “had the care and custody of the prisoners committed thither”, that “Barnes was his servant, employed by him in taking care of the prisoners”, that at the time of Arne’s imprisonment Barnes and Huggins knew the room to be as before described and that Huggins was “aiding and abetting Barnes in committing the said felony and murder.” 
28.	The jury returned a special verdict finding that Barnes was in fact the servant of Huggins’ deputy, Gibbon, and that Huggins had visited the cell only once, some 15 days before Arne died. The verdict was removed by certiorari into the Kings Bench and the case argued both there and subsequently before all the twelve Judges at Serjeants-Inn Hall. Lord Raymond, Lord Chief Justice, giving the unanimous opinion of the judges concluded that Barnes, if indicted, would, on the facts as found by the jury, have been guilty of murder, but that Huggins was not guilty. 
29.	There are various reports of the case and the reports of what for present purposes is the key ruling differ in detail, though they are all to the same effect. The longest version, in Lord Raymond’s own report ((1730) 2 Ld Raym 1574 at page 1580), is as follows:
“Though he was warden, yet it being found, that there was a deputy; he is not, as warden, guilty of the facts committed under the authority of his deputy. He shall answer as superior for his deputy civilly, but not criminally. It has been settled, that though a sheriff must answer for the offences of his gaoler civilly, that is, he is subject in an action, to make satisfaction to the party injured; yet he is not to answer criminally for the offences of his under-officer. He only is criminally punishable, who immediately does the act, or permits it to be done. Hale’s P. C. 114. So that if an act be done by an under-officer, unless it is done by the command or direction, or with the consent of the principal, the principal is not criminally punishable for it. In this case the fact was done by Barnes; and it no where appears in the special verdict, that the prisoner at the Bar ever commanded, or directed, or consented to this duress of imprisonment, which was the cause of Arne’s death.”
30.	The report in Strange ((1730) 2 Str 883 at page 885) is shorter but to the same effect:
“It is a point not to be disputed, but that in criminal cases the principal is not answerable for the act of the deputy, as he is in civil cases: they must each answer for their own acts, and stand or fall by their own behaviour. All the authors that treat of criminal proceedings, proceed on the foundation of this distinction; that to affect the superior by the act of the deputy, there must be the command of the superior, which is not found in this case.”
31.	The shortest report is in Fitz-Gibbons ((1730) Fitz 177 at page 186):
“The act of the deputy cannot criminally affect the principal; so that unless the act be by command, consent, or privity of the principal, so as to make him an abettor, he cannot be guilty.”
32.	Ever since then it has been settled law that there is, in general, no doctrine of criminal vicarious liability at common law. This is subject to only two (or possibly three) anomalous exceptions – public nuisance, criminal libel and (possibly) a particular form of contempt of court – none of which has anything to do with the offence charged in the present case and each of which, it is to be noted, is an example of a common law offence which, anomalously, does not in any event require mens rea: see generally Smith and Hogan, Criminal Law, ed 12, paras 7.1.3, 10.2.1.3-10.2.2 and Simester and Sullivan, Criminal Law Theory and Doctrine, ed 3, para 8.1. In R v Stephens (1866) LR 1 QB 702, the classic authority on vicarious liability in the context of public nuisance, Blackburn J at page 710 was careful to acknowledge the “general rule that a principal is not criminally answerable for the act of his agent”. 
33.	So, at common law, criminal liability requires proof of participation in the crime either as a principal or as a secondary party within the language of section 8 of the 1861 Act. The three anomalous cases apart, there is, at common law, no criminal vicarious liability.  
34.	On this short ground, as it seems to me, Mr McGuinness is entitled to succeed. 
35.	The case against the Chief Constable if in truth it is founded on some theory of vicarious liability is and always was bad in law. The case against the Chief Constable if it is founded on some allegation that he is liable either as a principal offender or as a secondary party is utterly devoid of any factual foundation. On either footing and, I might add, irrespective of Mr Price’s understanding, intentions and motives, whatever they may be, the proceedings against the Chief Constable are, and always were, hopelessly misconceived. And the pursuit of the proceedings by Mr Price is and always was vexatious and an abuse of the process of the court. For, whatever other species of (mis)conduct may be vexatious or amount to an abuse of the process, the pursuit of proceedings which, as here, have on any sensible view of the evidence absolutely no foundation in fact, is, as a matter of law, on that ground alone and without the need to establish any other vitiating feature, both vexatious and an abuse of the process.
36.	Having thus succeeded on the fundamental point, where does this leave Mr McGuinness? 
37.	The stark fact, as I have said, is that the proceedings against the Chief Constable are, and always were, hopelessly misconceived and their pursuit by Mr Price is and always was vexatious and an abuse of the process of the court. In these circumstances, and having regard to the District Judge’s powers as I have summarised them above, it is, in my judgment, quite clear that the District Judge could, and if he could then in my judgment he should, have exercised those powers to stop the proceedings against the Chief Constable. He could, and in my judgment he should, have refused on 29 October 2009 to issue the summons. The summons having been issued, he could, and in my judgment he should, have exercised his power on 17 December 2009 to stay the proceedings. He could, and in my judgment he should, have refused on 17 December 2009 to send the Chief Constable for trial in the Crown Court. 
38.	That the District Judge could have done all these things is clear. That he should have done these things follows, in my judgment, from the fact that he could. Often, indeed typically, the one does not follow from the other. But in the particular circumstances of this unusual and very striking case the one does indeed, in my judgment follow from the other. If it be the case that the proceedings were misconceived, vexatious and an abuse of the process of the court, and if it be the case that in those circumstances the District Judge had power to stop the proceedings in their tracks – and that is the hypothesis on which the present point is founded – then how could discretion sensibly be exercised otherwise than by putting an end to the vexation and the abuse? The answer is obvious. Given the premise, there is, in my judgment, only one way in which the discretion the District Judge undoubtedly had could properly have been exercised. He could and should have stopped the proceedings against the Chief Constable. 
39.	It may be that on 29 October 2009 the District Judge did not receive the help he thought he was seeking from the Chief Constable’s representative. But by the hearing on 17 December 2009 he had the benefit of the skeleton argument prepared for the occasion by Mr McGuinness. Now true it is that the skeleton argument did not in so many words assert the proposition that there is no criminal vicarious liability at common law. And true it is that there was no reference to the authority of Huggins. But the skeleton argument made the fundamental points very clearly and, in my judgment, entirely accurately. 
40.	It asserted that “The Complainant’s application to issue a summons alleging the criminal offence of false imprisonment on the footing that the Chief Constable was, by virtue of his office, criminally responsible for the conduct of his officers was entirely misconceived.” I agree. It went on to assert two “fundamental principles” of criminal law, namely that a person can be guilty of a criminal offence only as a principal or as a secondary party and only if it is proved that at the relevant time he had the requisite mens rea. Again, I agree – at least so far as concerns a common law offence such as false imprisonment. It went on to assert that there was not and could not be any suggestion that the Chief Constable committed the offence of false imprisonment of Mr Price either as a principal or as a secondary party or that he possessed the requisite mens rea. Again I agree, just as I agree with the further proposition that, as it was put in the skeleton argument, “The Chief Constable did not personally instruct or direct his officers in relation to [Mr Price’s] presence at the police station, nor did he speak to or communicate with them.” Precisely so.
41.	Having drawn the District Judge’s attention to the principles to be found in R v Belmarsh Magistrates’ Court ex p Watts [1999] 2 Cr App R 188 and R (Mayor & Burgesses of London Borough of Newham) v Stratford Magistrates’ Court [2004] EWHC 2506 (Admin) and made it clear that the jurisdiction which the court was being asked to exercise was that referred to in ex p Watts at page 196, the skeleton concluded with the submission, which again I would accept in its entirety, that there was never any proper basis for the application on 29 October 2009, that the summons ought never to have been issued, and that the proper course for the court to adopt was to correct the “fundamental error” that was made on 29 October 2009 (an error brought about by Mr Price’s misuse of the court’s process) and to stay the proceedings at the earliest opportunity.
42.	The District Judge declined to follow that course. In his affidavit he explains why. He thought that the point was, in all the circumstances, more appropriately to be dealt with in the Crown Court. He was, he says, “particularly drawn” to the fact that, as the authorities show, the Magistrates’ Court should only rarely stay proceedings. He says that he was also aware that in R (Salubi and another) v Bow Street Magistrates’ Court etc [2002] EWHC 919 (Admin), [2002] 2 Cr App R 40, Auld LJ at para [21] had said that if proceedings were to be stayed as an abuse of the process the onus was on the defence to establish “bad faith or serious misconduct”, something which in his opinion the Chief Constable had not established. 
43.	As to all this I merely observe that, whether or not there is bad faith, to pursue, as Mr Price was here seeking to pursue, a case which was, for the reasons I have given, hopelessly misconceived, vexatious and an abuse of the process of the court, is to be guilty of the kind of serious misconduct which amply merits, indeed requires, the exercise by the Magistrates’ Court of its power to stay proceedings as an abuse of the process.
44.	In all the circumstances the Chief Constable is, in my judgment, entitled to orders quashing both the issue of the summons on 5 November 2009 and the decision of the District Judge on 17 December 2009 sending him for trial at the Crown Court.
45.	At the end of the hearing we announced our decision and made an order in those terms, explaining that we would give our reasons in writing in due course. That we now do.
46.	Before us, though not before the District Judge (for what happened at the hearing on 9 October 2009 was not known to the Chief Constable and his advisers until they received the District Judge’s affidavit of 16 February 2010), Mr McGuinness relied upon a second argument: namely, that in the light of what Mr Price had said to the District Judge at the hearing on 9 October 2009, the proceedings were also vexatious and an abuse of the process as having been brought with an ulterior motive.
47.	Given the conclusion I have come to in relation to the first ground upon which Mr McGuinness puts his case, there is, in my judgment, no need for us to go on to consider this other ground of complaint and good reason, as it seems to me, why we should not. 
48.	The point in relation to vicarious liability is confined to the case sought to be made by Mr Price against the Chief Constable. But the point in relation to ulterior motive would seem to arise not merely in relation to the Chief Constable but also in relation to the ten other officers in relation to whom summonses have been issued and who have been sent for trial to the Crown Court. Now, albeit through their own choice, they are not before the court; they have neither sought judicial review of the decisions of the District Judge on their cases nor have they sought to participate before us as interested parties. It is nevertheless open to them to argue in the Crown Court that the proceedings against them are an abuse of the process: R (Salubi and another) v Bow Street Magistrates’ Court etc [2002] EWHC 919 (Admin), [2002] 2 Cr App R 40 at para [20]. I do not, of course, know whether that is a course they are minded to pursue, but in all the circumstances, and not least because neither Mr Price nor the other interested parties have appeared before us, it seems to me that if there is to be any argument in relation to the suggestion that Mr Price had an ulterior motive and that the proceedings are therefore an abuse of the process – an argument which, to repeat, the Chief Constable does not need to rely upon in order to succeed – it is an argument best left to be dealt with in due course in the Crown Court. I therefore say no more on the point. 
Mr Justice Keith :
49.	I agree.