IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
BETWEEN:
SUPERINTENDENT W A A MURTAGH
(Complainant) Appellant;
AND
PETER FITZPATRICK
(Defendant) Respondent.
CRIMINAL PROCEDURE – OBSTRUCTING CONSTABLE IN EXECUTION OF DUTY – ROAD TRAFFIC OFFENCE – DEFENDANT GAVE MISLEADING ANSWERS – MAGISTRATE CONSIDERED CHARGE TOO SERIOUS FOR A MINOR OFFENCE – WHETHER PROPER EXERCISE OF DISCRETION TO DECLINE TO HEAR PROCEEDINGS THAT ARE OPPRESSIVE OR AN ABUSE OF THE PROCESS OF THE COURT.
JUDGMENT OF HUTTON LCJ and
O’DONNELL LJ – DELIVERED 11 OCTOBER 1989
HUTTON LCJ
This is an appeal by way of case stated by Superintendent Murtagh of the Royal Ulster Constabulary from the decision of the Resident Magistrate sitting at Newry.
The facts found by the Resident Magistrate disclosed that the respondent was riding a motor-cycle on a public road near Newry. On being asked by a woman police officer to produce evidence of insurance cover, he alleged that the motor-cycle was owned by another person, whose insurance covered the respondent.
Further inquiries revealed that the motor-cycle belonged to the respondent, that he was not insured; and that the first version given by the respondent was designed to mislead the police.
The respondent was charged with the offence of driving without insurance and convicted on his plea of Guilty. He was also charged under section 7 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 with obstruction of a constable.
The precise charge was:
“That the defendant on the 2nd day of July 1988, at Newry in the said district and county court division, did obstruct Jacqueline McCoy, a constable, in the due execution of her duty, contrary to section 7 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968.”
Paragraph 3 of the case stated by the Resident Magistrate states:
“The defendant pleaded guilty to a ‘no insurance’ offence in respect of said incident but it was then contended by his legal advisor that an offence, contrary to Article 180(7) of the Road Traffic (Northern Ireland) Order 1981 was the more appropriate charge in relation to the facts contained at paragraph (1) hereof. The offence as charged was a much more serious matter as it also related to assaulting, resisting and impeding a police officer in the course of his duties. As the criminal acts of the defendant lay in relation to Road Traffic offences, then patently the charge as laid was inappropriate and oppressive.”
The Resident Magistrate held:
“That the attempt to mislead the police was of a minor enough nature and the above offence was inappropriate and oppressive so I dismissed the said complaint, and fined the defendant the sum of £50 in relation to the no insurance offence.”
The prosecutor sought a case stated on the following question:
“Was I right in dismissing the said complaint on the basis that the criminal acts of the accused were of a minor nature and the complaint should have been brought for an offence, contrary to Article 180(7) of the Road Traffic (Northern Ireland) Order 1981?”
Article 180(7) of the Road Traffic (Northern Ireland) Order 1981 provides:
“Any person who obstructs any constable in the exercise of any powers conferred under this Order or who refuses to answer, or answers falsely, any inquiry authorised to be made by a constable under Article 139(4) shall, without prejudice to any other provision of this Order, be guilty of an offence under this Order.”
The reason why this Article was not invoked, and why it was considered necessary to use section 7 of the Criminal Justice Act instead is not stated in the case stated, but it appears from what this court was told by counsel for the appellant that the prosecution only discovered that the respondent had lied to the police officer just before the expiration of the six months period for bringing a summons under Article 180(7) which time limit did not apply to a summons under section 7 of the 1968 Act which can also be charged on indictment. But the Resident Magistrate obviously considered that a charge under section 7 of the 1968 Act was too serious a charge for what he considered a minor offence. Therefore he considered, having heard the evidence, that the actual offence was of a minor nature, and that it was inappropriate to have prosecuted under section 7 of the Criminal Justice Act.
In Mills v Cooper [1967] 2 QB 459 at 467E Lord Parker stated:
“… every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court.”
It is clear law that the High Court and the Crown Court has this right and, for the purpose of this appeal, we assume, without deciding the point, (see – DPP v Humphrys [1976] 2 AER 497 at 528b) that a Magistrates’ Court in Northern Ireland has such a right.
In DPP v Humphrys [1976] 2 AER 497 at 527h Lord Salmon stated:
“I respectfully agree with my noble and learned friend, Viscount Dilhorne, that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.”
However the facts in the present case are far removed from either oppressive and vexatious conduct, or from being an abuse of the process of the court.
What has occurred here is that a prosecutor has elected to prosecute under one statute for an offence which might have been prosecuted under another statute. But what is clear is that the facts clearly constitute an offence under both statutes, and the decision under which one to prosecute was a matter for the prosecutor.
The Resident Magistrate should not have dismissed a charge clearly proved. If he considered that the attempt to mislead was not serious, he could have reflected this in the sentence.
He was wrong in dismissing the charge and the question in the case stated must be answered No.
The case will be sent back to the Resident Magistrate with direction to convict.
