Practice and Procedure


PUBLISHED October 20, 2003

A magistrates' court's decision to withdraw a warrant was liable to be quashed in circumstances where it was based on an error of fact and there had been no opportunity for any party to make representations.Application for judicial review of a decision of Selby Magistrates' Court on 5 August 2003 to withdraw an arrest warrant issued by York Magistrates' Court on 17 October 2002 in respect of alleged dishonesty related offences by the interested party ('F'). F had been investigated by the Police and the applicant ('SFO') in connection with his involvement in the trading activities of a company. Pursuant to the warrant, F's extradition had been sought from Perth, Australia. The warrant was purportedly withdrawn by the respondent court under s.125(1) Magistrates' Court Act 1980 on a "rolling review" of outstanding cases. On the instant application the SFO argued that: (i) the withdrawal was an error based on a mistake of fact on the part of the court; (ii) the warrant was not stale and there had been no reason for the court to take the view that it was or to conclude that the criminal process was no longer live; (iii) the decision to withdraw the warrant had been taken without providing an opportunity to any of the parties to make representations; (iv) in reliance on R v Bedwellty Justices, ex p Williams (1996) 3 WLR 361, the use of s.125(1) of the Act was susceptible to review on the basis that it was an error of law and/or was otherwise irrational; and (v) the decision to withdraw the warrant should therefore be quashed. F argued that: (a) the SFO could take the alternative route of issuing a new warrant; (b) in those circumstances, it was unnecessary to quash the decision.HELD: (1) There had been an error of fact by the magistrates. If the SFO had chosen to issue a new warrant it would have had to have accepted that the decision to withdraw the warrant was regular. However, it was clear that the SFO had to come before the High Court because the decision was irregular. Moreover, F had been held in custody in Australia since 5 August 2003 and if the SFO had accepted that the decision had been regular, questions would have arisen over the legitimacy of that custody. (2) Further, in the circumstances the court did have power to quash the decision to withdraw the warrant (Williams (supra) considered). (3) In this case the magistrates had had power to withdraw the warrant but that power could only have been properly exercised if the correct information had been before the magistrates' court. The correct information had not been before the court and the power had therefore been improperly exercised. Accordingly, the decision would be quashed. (4) It was to be noted that the High Court was dismayed at what had occurred in the case. There was no extant record of prior proceedings and none of the SFO, the police or F had been informed of the hearing before the magistrates or given an opportunity to make representations. If the SFO had sought to be indemnified in costs, the court would have given serious consideration to the grant of such a request despite it being the normal practice of the court not to make such a grant.Application allowed.