Case No. CO/6830/2008 
Neutral Citation Number: [2009] EWHC 1844 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Wednesday, 10th June 2009
 
B e f o r e:

LORD JUSTICE PILL 

MR JUSTICE CRANSTON 
- - - - - - - - - - - - - - - - - - - - -
Between: 
LONDON BOROUGH OF WANDSWORTH 
Claimant

v 

RASHID 
Defendant 
- - - - - - - - - - - - - - - - - - - - -
Computer‑Aided Transcript of the Stenograph Notes of  
WordWave International Limited
A Merrill Communications Company 
190 Fleet Street  London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
- - - - - - - - - - - - - - - - - - - - -
Mr J Cannon (instructed by LB Wandsworth Legal Dpt) appeared on behalf of the Claimant 
The Defendant did not appear and was not represented  
- - - - - - - - - - - - - - - - - - - - -
J U D G M E N T 

1.	LORD JUSTICE PILL:  This is an appeal by way of Case Stated from a decision of the South Western Magistrates' Court sitting at Wandsworth on 23rd April 2008 terminating a prosecution for abuse of process.
2.	On 7th January 2008 an information was laid by the London Borough of Wandsworth ("the appellants") against Mujahinder Rashid ("the respondent") that: 
"On 30th July 2007, being the manager of JD Sports of 2‑4 St Johns Road, SW11 and the producer of controlled waste, you failed in your duty to take all such measure applicable to you in that capacity as are reasonable in the circumstances to prevent the escape of waste from your control or that of any other person contrary to Section 34(1)(b) of the Environmental Protection Act 1990 in that your trade waste, namely a pile of about 12 refuse sacks was found on the highway St Johns Hill SW11 at the junction with St Johns Road and an offence has thereby been committed CONTRARY to Section 34(6) Environmental Protection Act 1990."
3.	Mr Rashid was represented by counsel before the magistrates.  He has not appeared today and is not represented.  The court has been told that Mr Rashid has been informed of today's hearing and also supplied by the appellants with the relevant documents.  In those circumstances we propose to proceed.  Mr Cannon, who appears for the appellants, has attempted fairly to state the considerations which arise, those which may favour Mr Rashid as well as those which favour his client.
4.	Section 34 of the 1990 Act provides, in so far as is material: 
"(1)...it shall be the duty of any person who imports, produces, carries, keeps, treats or disposes of controlled waste or, as a broker, has control of such waste, to take all such measures applicable to him in that capacity as are reasonable in the circumstances— 
... 
 (b) to prevent the escape of the waste from his control or that of any other person..."  
Subsection (6) provides: 
"Any person who fails to comply with the duty imposed by subsection (1) above or with any requirement imposed under subsection (5) above shall be liable—  
(a) on summary conviction, to a fine not exceeding the statutory maximum; and
(b) on conviction on indictment, to a fine."
5.	The court first refused to allow the information I have read to be amended.  Secondly, they found that the Borough had abused the process of the court by bringing the case against Mr Rashid.
6.	The court had been given notice before the date of the proposed for the substantive hearing that the abuse of process application would be made.  Very shortly before it was made, a statement on behalf of Mr Rashid was submitted to the court.  The court appeared, in its statement of the case, at least to have regard to, and in some respects accept, the material contained in that statement incorporated as it was in skeleton arguments served on his behalf.
7.	The evidence on which the prosecution proposed to rely at the substantive hearing is summarised in the written submission which the prosecution made to the magistrates.  That was prepared by Mr Cannon.  
8.	The prosecution case is that on 30th July 2007 a number of clear plastic refuse bags were observed on the pavement outside the shop where the respondent was the store manager.  The respondent was approached and identified himself and his responsibility for the bags of refuse.  He appeared not to know what the arrangements were for the collection of refuse from the store.  No mention was made of flooding, although it is accepted now that there had been heavy rain at that time.  The quantity and positioning of the bags on St Johns Road, which includes a busy pedestrian thoroughfare, amounted to a hazard to passersby in view of officers at the scene.  Further, emails disclosed by the respondent showed that the bags had been there for a period of time and that the respondent did not know what the appropriate procedures were for dealing with his waste.
9.	The statements submitted on behalf of the respondent, shortly before the hearing and, of course, long after the information was laid, referred to severe flooding of the premises as a result of torrential rain.  Mr Rashid, it is said, had not been trained as to what to do in such circumstances.  He relied on instructions from head office and placed the bags out for collection.  He saw the following day that the rubbish had not been collected and that applied also on Monday 30th July.  Space did not permit the bringing of the bags back into the premises.
10.	The questions posed for the opinion of this court are:  
"(a) In the light of the guidance in New Southgate Metals Limited v London Borough of Islington [1996] Crim LR 334, were the bench correct to refuse to amend, whether on the basis on which they did refuse, or at all?  
 (b) Did the Bench misdirect itself in finding that they had heard no explanation for the fact that the London Borough of Wandsworth had decided to prosecute rather than offer education and/or oral or written warnings in the circumstances of this case, in particular in light of the prosecution skeleton argument at paragraph 17‑31?  
 (c) Were the Bench wrong in law to substitute their own view for that of the Prosecutor as to which of the 'options' under the Waste Enforcement Policy was appropriate in this case? 
 (d) Were the Bench wrong in law in their finding that the prosecution was an abuse of process because it was contrary to the Waste Management Enforcement Policy?" 
11.	The application to amend the information arose because of Mr Rashid's position as manager; the producers of the waste were JD Sports, also mentioned in the information.  Mr Cannon submits that the amendment was merely to make that clear and had no further effect.  It was wrong of the magistrates to decline to exercise their power to permit the amendment.
12.	The proposed amendments, which appears at page 36 of the bundle, is merely that the word "and" after "SW11" should be deleted and the following words "a producer of controlled waste" should be placed in brackets.  As to that, the magistrates in their Case Stated, at paragraph 4: 
"We found after consultation with each other that it was not necessary to allow the application to amend because the defendant, the prosecution and the court were all well aware of the true basis of the information, namely that it was JD Sports and not the defendant, Mr Rashid, who were the 'producers' of the waste and therefore, in our opinion, an amendment would not be germane to the outcome of the case or the way in which the case was put because of the fact that all parties were aware of the true basis as stated above.  As a result we did not use our discretionary power to allow the amendment." 
13.	This appears to me to be a clear case where the amendment should have been permitted under section 124 of the Magistrates' Court Act 1980.  It had the merest technical effect and I do not accept or, with respect, understand the reasoning of the magistrates which led to their decision.  It was sought only to make clear that it was JD Sports and not Mr Rashid who were the producers of controlled waste.  Mr Cannon says that he proposed to rely on section 158 of the Environmental Protection Act 1990, which he submits would permit Mr Rashid to be convicted even though the "producer", the word in section 34(1) extracted into the information, was JD Sports and not Mr Rashid.
14.	As to whether that information as amended is a sound information, I express no view.  All this court is asked to consider is the question before it:  whether the amendment should have been permitted.  I make no comment on whether the charge, as amended, is a sound charge, save to say that there are other words in section 34 which might appear, and we have heard no full argument on this, to cover Mr Rashid, without any need for recourse to section 158.  Whether such recourse is in the event successful or not on a remittal, I express no views upon the validity or suitability of the information as amended.
15.	As to the other issues, the magistrates in their case refer to the appellants' waste management enforcement policy. They refer to a concession made by Mr Cannon, from which he does not resile in this court.  Paragraph 6: 
"The prosecution did not dispute that if it could be shown that their prosecution of Mr Rashid was indeed outside, not in line with or unsupported by the Policy, then it could amount to an abuse of process." 
16.	The magistrates referred to the submissions made on behalf of Mr Rashid, based on the information then recently disclosed on his behalf. Paragraph 9:  
"...there was no deterrent factor and that Mr Rashid was an individual in a one‑off situation caused by the flooding due to heavy rains and that there was no reason for him to be 'deterred.'" 
17.	Reference is made to the appellants' case, at paragraph 10, that Mr Rashid was prosecuted instead of the business because it was Mr Rashid who left the waste on the highway and did not bring it inside the shop when it had not been collected.  Paragraph 12: 
"We were told by the Borough that the waste was left in a very busy area in the town centre and that in the 'investigator's view the waste was causing a hazard'. We were told that Mr Rashid, when spoken to 'did not know what to do with the waste and this made the case more serious.'... if people hear that there has been a prosecution in terms of leaving waste, it acts as a deterrent." 
The lapse of time between the putting out of the rubbish and its removal is what was relied on.  Further reference was made to Mr Rashid's case that his actions were "as a result of exceptional circumstances ie severe flooding from torrential rain."
18.	In their reasoning, the magistrates state that they were given no further explanation as to why in the circumstances education about waste disposal was not considered.  Further, the appellants did not expand as to why warnings, written or oral, were not or could not have been given.  The magistrates' conclusions are at paragraph 16: 
"We found that having considered the Policy objectively, it would have been reasonable for the Borough, in line with that Policy, given all the circumstances in this particular case, to have considered alternatives to prosecution; either an oral or written warning or education under the terms of paragraph 7.4 of that Policy. We considered in great detail paragraph 7.9 of the Policy which deals with situations when a prosecution should be brought by the Borough.  In all the circumstances and having taken account of all the representations, we found that the Borough brought the prosecution against Mr Rashid oppressively and unfairly by not following the Policy guidelines.  We found that there was no clear explanation given as to why alternative enforcement as set out in the Borough's Policy was not considered and in fact we were told 'alternative enforcement is not an issue'.  We found this statement also to be, of itself, outside the Policy which clearly deals with alternatives to prosecution.  On this basis, and everything as set out above, we found that there was indeed an abuse of process and thus stayed the proceedings." 
19.	We have been referred to the policy at the paragraphs mentioned by the magistrates and to other paragraphs.  It is contained in a document bearing the appellants' name and described as a Waste Management Enforcement Policy.  It is dated 13th September 2005.  Examples are given of activities liable to result in enforcement action.  They include dumping rubbish anywhere in the Borough.  The object of the policy is stated at 3.3: 
"Keeping Wandsworth clean and tidy is a high priority for local residents.  And local businesses are liable to suffer if the streets in which they trade are covered in litter and abandoned refuse.  We therefore take a firm approach towards waste and litter enforcement." 
20.	Types of action which may be taken are then set out.  In section 5, "Education" 5.1: 
"Educating residents, businesses and visitors to Wandsworth about how to manage their refuse properly helps to reduce the number of offences committed through ignorance. Education can also be used as an alternative to taking other actions for minor offences committed by persons with no previous history of similar offences.  This can be appropriate where an assessment of the factors listed in paragraph 6 below does not support more serious actions as described in paragraph 7." 
21.	Section 6 is headed "Deciding what type of action to take ‑ Enforcement". Criteria are set out at 6.2:  
"When basic evidence of an offence is found, Waste Management staff must decide what, if any, action should be taken.  In doing so they will assess the following factors: 
(a) the seriousness and prevalence of the offence; (b) the quality of available evidence and probability of the enforcement action under consideration being successful;  
(c) the past history of the offender and the probability of re‑offending; 
(d) the likely effectiveness of the deterrent that successful enforcement action would achieve; 
(e) whether there has been a flagrant disregard for the condition of the neighbourhood; 
(f) the degree of premeditation; and 
(g) the availability of resources and whether deploying them elsewhere would be more likely to have a greater impact on reducing the amount of refuse being deposited on the Borough's public highways or other open land." 
Section 7 deals with enforcement action: 
"7.1 The option of prosecution is available for all offences, but alternative, or additional enforcement options are available in many cases...  
7.2 Education:  Where there is evidence of an offence, but it appears that the offence was not premeditated, and the offender was ignorant of the law, we will usually offer advice to offenders and simply ask them to remove the rubbish, etc.  The Council provides a range of leaflets and letters to help.
...  
7.4 Oral and written warnings:  Oral and written warnings carry no legal significance.  We use them where there is substantial evidence of an offence but where there are good reasons not to proceed further.  
7.5 Formal caution: Formal cautions involve the offender admitting guilt and being admonished. They will be taken into account by the court should the offender be prosecuted for a further offence.  We will not issue a formal caution unless the offence justifies a prosecution and the evidence is adequate to support a prosecution.  If an offer of a formal caution is refused, we will normally prosecute.  
7.6 Fixed penalty notice: Fixed penalty notices offer offenders the option of paying a penalty charge to avoid being prosecuted for certain offences.  Officers will not issue a fixed penalty notice unless 
(a) the offence justifies prosecution;... 
7.9 Prosecution: We will normally prosecute if an assessment of the factors at paragraph 6 above provides a strong case for doing so and the other options are not considered to be a suitable deterrent to re‑offending.  The abandonment of commercial refuse in Wandsworth, especially in the town centres, is a serious problem. Businesses that fail to comply with their 'Duty of Care' (eg by abandoning their refuse on the pavement or by failing to keep proper records what they have done with it) will normally be prosecuted, especially if they have received information and/or advice in the past."
I have not read all the details of those paragraphs but for present purposes I regard the summary as sufficient.
22.	At section 9, reference is made to case studies which provide assistance to enforcement officers but a warning is given in the opening paragraph:  
"However, the full facts may justify a different approach even in cases that sound similar."  
I say at this stage that we do not consider that Mr Rashid gains any advantage in that context from the reference made on his behalf to "Ms D" mentioned in 9.5.   
23.	Mr Cannon submits that the decision of the magistrates that the appellants' laying the information and pursuing it to court was an abuse of process, constituted an error of law on their part.
24.	The question whether or when the court should intervene in the criminal process by making a finding of abuse and ending the proceedings was considered in R v Horseferry Road Magistrates' Court ex parte Bennett [1994] 1 AC 42. Giving the leading speech Lord Griffiths stated at page 63H:  
"Provided it is appreciated by magistrates that this is a power to be most sparingly exercised, of which they have received more than sufficient 
judicial warning (see, for example, Lord Lane C.J. in Reg. v. Oxford City Justices, Ex parte Smith  (1982) 75 Cr.App.R. 200 and Ackner L.J. in Reg. v. Horsham Justices, Ex parte Reeves (Note)  (1980) 75 Cr.App.R. 236) it appears to me to be a beneficial development and I am unpersuaded that there are any sufficient reasons to overrule a long line of authority developed by successive Lord Chief Justices and judges in the Divisional Court who are daily in much closer touch with the work in the magistrates' court than your Lordships. Nor do I see any force in an argument developed by the respondents which sought to equate abuse of process with contempt of court. I would accordingly affirm the power of the magistrates, whether sitting as committing justices or exercising their summary jurisdiction, to exercise control over their proceedings through an abuse of process jurisdiction. However, in the case of magistrates this power should be strictly confined to matters directly affecting the fairness of the trial of the particular accused with whom they are dealing, such as delay or unfair manipulation of court procedures. 
Although it may be convenient to label the wider supervisory jurisdiction with which we are concerned in this appeal under the head of abuse of process, it is in fact a horse of a very different colour from the narrower issues that arise when considering domestic criminal trial procedures."
25.	Reliance was placed on Mr Rashid's behalf before the magistrates on the case of R v Adaway [2004] EWCA Crim 2831, Rose LJ (Vice‑President of the Court of Appeal (Criminal Division)) presiding.  The effect of that case was helpfully summarised in a later case to which reference has been made, R v Mondelly v Commissioner of Police for the Metropolis [2006] EWHC 2370 (Admin), a majority decision of this court, Moses LJ presiding.  At paragraph 42: 
"... in R –v‑ Addaway [2004] EWCA Crim 2831 in which the decision of a local authority to prosecute for a false trade description was successfully challenged. That was a highly unusual case. The local authority had a clear and settled policy not to prosecute save in cases of fraud or deliberate breaches of the Act. The Court of Appeal upheld an appeal against the refusal of the judge to stay the prosecution in circumstances where there was no evidence of fraud or a deliberate breach and it was apparent that the prosecution was oppressive. No proper consideration had been given by the local authority to its own trading standards prosecution policy and, indeed, the prosecution had sought without any justification to cross‑ examine so as to demonstrate fraud." 
26.	The Court in Adaway had considered a ruling at the Reading Crown Court.  The reasoning of the court, expressed by the Vice‑President, is at paragraphs 25 to 27 and the case was properly cited to magistrates on behalf of Mr Rashid.
27.	In Mondelly what was at issue was the power of the police to issue cautions, a possible sanction mentioned in the policy document to which I have referred.  Reference was made at paragraph 26 of the judgment of Moses LJ to the national standards on cautions, with a comment that a formal caution is a serious matter.  The criteria set out are that there must be evidence of the offender's guilt sufficient to give a realistic prospect of conviction.  The offender must admit the offence, must understand the significance of a caution and give informed consent to being cautioned.  In his judgment, with which Ouseley J agreed, Moses LJ rejected the submission that the police had been in error of law in the circumstances of that case in administering a caution. 
28.	The case was, of course, different from the present one, in that the court was considering the lawfulness of a caution which would prevent proceedings in a court, rather than the power of a court to terminate as an abuse of process a prosecution.  While Bennett was not cited, the reasoning of Moses LJ appears to me to be, with respect, consistent with the approach in that case.  It was understandably not cited because the issue was different.  
29.	The submissions of Mr Starmer QC, on the claimant's behalf, were rejected.  At paragraph 48 Moses LJ stated: 
"So the policy on arrest when read across to cautions as Mr Starmer QC contended it should be, becomes a prohibition on prosecution. That is an utterly misconceived approach to the meaning and effect of the policy...  
49. ... The implication of Mr Starmer QC's argument is that by policy, a police force or the Home Office, could suspend or dispense with part of the law as enacted by Parliament... 
50. But when it comes to analysis of the Notice on which the claimant relies, the argument becomes even more difficult.  Even if one could contemplate a policy having the effect for which the claimant contends, in order to succeed he must establish a clear policy not to administer a caution for simple possession of cannabis, departure from which must be justified.
51. The claimant must therefore establish such a clear policy by reference to the policy relating to arrest and prosecution for simple possession of cannabis, which, in some way limits the policy relating to cautioning. In my judgment, he cannot do so.
52. Firstly, there is no clear policy precluding arrest, caution or prosecution for simple possession of cannabis on which anyone found in possession of cannabis can rely. Notice 3/2004 on which the claimant relied expressly provides that it is not intended to interfere with the discretion of a police officer. If it was intended to circumscribe an officer's statutory discretion to arrest then it is seriously misleading. The policy specifically refers under Paragraph 1 of the SOP that it is not intended to interfere with an individual officer's discretion (see Paragraph 1.2); that echoes the ACPO Guidance particularly the question and answer I have already identified. Even the description of circumstances where it is appropriate to arrest emphasises again that it 'is very much left to the discretion of officers who will be expected to take into account the prevailing circumstances when deciding to arrest or not'.
53. ... A policy on arrest, based on its own rationale and hedged about with the maintenance of a constable's discretion as it is, cannot sensibly be interpreted as a policy which prohibits cautions or prosecution." 
I repeat that what was in issue in Mondelly was different but the same underlying concern is involved, that is the extent to which courts should intervene and control the conduct of prosecuting authorities.
30.	Mr Cannon does not resile from the concession recorded in the Case Stated.  His submission is that when there is a challenge by way of an abuse of process application to a decision not being in accordance with a stated policy, it needs to be established by the person making it, first, that there is a clear and settled policy, and secondly, that there has been a clear breach of it.
31.	In my judgment, the magistrates were wrong to find an abuse of process on the evidence in this case.  The first point taken by Mr Cannon, although not in the order he presented it, was that, in considering whether there had been an abuse, what the magistrates should have taken into account was the evidence available to the prosecuting authority when the information was laid and only that evidence.  They should not have taken into account, as they appear to have done, from parts of the case I have quoted, the late suggestion on behalf of Mr Rashid that there was flooding and that there were other mitigating factors which worked against prosecution.
32.	The underlying principle being that it is for prosecutors to decide when to prosecute, and that it is only when an abuse is plainly shown that a court should intervene, suggestions unsupported at that stage by evidence as to factors which may turn out to be present at the trial should not be taken into account upon an abuse application.  Of course, it will be open or the hearing itself for these factors to be relied on as showing that the court should not find the information proved.  But the justices were, in my view, wrong in taking into account, if they did take it into account, the mitigating factors in relation to the offence itself, raised shortly before the hearing on Mr Rashid's behalf.  A question to that effect has not been posed but it is necessary to have considered that aspect of the case when reaching a conclusion on the questions which have been posed.  
33.	Secondly, submits Mr Cannon, the opening words of paragraph 16, where a conclusion is stated, demonstrate an error of law.  I agree with that submission.  The test was wrongly expressed; a finding that it would have been reasonable for the Borough, in line with the policy, to take another course of action, does not necessarily lead to a conclusion that the course of action they took amounted to an abuse of process.  
34.	Thirdly, in my judgment, the reasoning of the court in the remainder of paragraph 16 is in error.  The prosecution were not required to go through each other possible course of action seriatim in order to justify a decision that the course of action they took was a lawful course of action.
35.	I have referred to the policy in some detail.  A number of sanctions are available.  It is made clear that the option of prosecution is available for all offences.  This alleged offence, if established, did have elements of seriousness.  The object of the policy is plainly stated in the policy itself at 3.3.  Other options might lawfully have been taken, but in the circumstances of this case it appears to me to be wholly unwarranted to decide that, in taking the course they did, the appellants were behaving oppressively towards Mr Rashid or abusing the process of the court.  Options are left open, as they were to police officers operating the cautions policy in Mondelly.  Having regard to the underlying principles stated in Bennett, reaffirming earlier authority, this was a case in which the magistrates exceeded the powers which the abuse process confers upon them.
36.	I make no further ruling upon the extent to which the principle relied on in Adaway is sound, or upon the breadth of it.  Taking the broadest view one can of it, I agree with the submission of Mr Cannon that the test has not been met in this case.
37.	For those reasons I would allow this appeal.  I would answer question (a): "No"; I would answer question (d): "Yes". I do not consider it necessary to answer questions (b) and (c).  The reasoning by which I have reached my conclusion on question (d) will, I hope, deal with them.
38.	MR JUSTICE CRANSTON:  
39.	I agree.  The authorities clearly establish that the courts must be reluctant to interfere with decisions on enforcement.  Where there is a clear and settled enforcement policy and a breach of that is established, that may be a necessary, but by no means sufficient, condition for judicial intervention.  
40.	In this case Parliament has laid down in section 158 of the Environmental Protection Act 1990 ("the Act") a well trodden path for situations where an offence, such as under section 34 of the Act, is attributable to the default of a person like this respondent.  In September 2005 the local authority adopted a policy relating to the prosecution of offences under the Act.  That policy is open‑textured in nature.  It sets out a number of options:  education, warning, formal cautions, a fixed penalty notice and prosecution.  It also identifies the different factors which bear on a consideration of each of these options.  
41.	In this case, the local authority concluded that one of the options in its policy was appropriate, namely prosecution.  That another option was open to it, namely education, is no basis for a court to question the decision reached.  As Moses LJ pointed out in Mondelly, cited by my Lord, the issue is for a court is one of Wednesbury unreasonableness.  That is not the way the magistrates approached the issue.  For the reasons given by my Lord, there is also a flaw in their approach to abuse of process.  
42.	For completeness, I would also add that, in my view, there is no requirement that the enforcement agency in this case should have given an explanation for rejecting alternative enforcement options. That would have been unnecessarily onerous.  
43.	I agree that the question in the Case Stated should be answered in the manner my Lord has proposed.
44.	LORD JUSTICE PILL:  Are there any applications? 
45.	MR CANNON:  My Lord, yes. I am grateful for that full judgment.  Semi reluctantly I have an application for costs and I say "semi reluctantly" because Mr Rashid has not been here and has not involved himself in the proceedings at all for some time, but nonetheless it is a matter that the local authority felt needed to be pursued for reasons that I hope your Lordships understand.  It was said in court that we had, in deciding to prosecute a case, the kind of which arises relatively frequently, we have had acted oppressively.  That was a matter that needed to be put right.  I do apply for the local authority's costs.
46.	LORD JUSTICE PILL:  It is surprising that JD Sports have not stood behind him.
47.	MR CANNON:  My Lord, yes. I do not know what the background to that is, I have to say.  I understand that he left their employment at some point and that was the end of the funding stream, if I can put it that way.  Beyond that I do not have any further information I am afraid. 
(The Bench Conferred) 
48.	LORD JUSTICE PILL:  You are entitled to your costs but it may be a case where discretion could be exercised.
49.	MR CANNON:  I am grateful for that indication.
50.	LORD JUSTICE PILL:  It stems back to the wording in the charge.  The charge could have been against JD.
51.	MR CANNON:  Yes.
52.	LORD JUSTICE PILL:  That might be borne in mind.  I am not doing now what I said I would not do earlier, comment on the merits of the charge as now framed.
53.	MR CANNON:  The difficulty, my Lord, and I do not seek to say more than I ought.  The difficulty with that approach often is that the company will simply pin it on their employee and say:  we have standard operating procedures and he did not follow it.  Then, of course, the claimant shows they have taken all reasonable steps and escape that way.  That is the background to this approach.
54.	LORD JUSTICE PILL:  I follow. It leaves individuals open to a broad range of prosecution.  Very well, what are you asking us to do? 
55.	MR CANNON:  My Lord, perhaps the order I propose is that the respondent pay the appellant's costs to be assessed, if not agreed.  I take your Lordship's indication about likelihood or otherwise of pursuing.  I do have a schedule. 
56.	LORD JUSTICE PILL:  We would not do it summarily.
57.	MR CANNON:  Indeed, in his absence. I should say I gave some thought to the role of the magistrates in this case.  Given the way the case was put before them in terms of approach seems to be correct on both sides, both by Mr McPherson and by myself.  The going wrong, as it were, was that of the court.  I do not know, I am afraid, where that submission takes me in respect of costs.  I do not think it gets as high the kind of behaviour that entitles me to make that kind of application.  But I hope your Lordship sees the point that I make.
58.	LORD JUSTICE PILL:  Is there anything further?
59.	MR CANNON:  No.
60.	LORD JUSTICE PILL:  The case is in limbo.  Do you not want to rehear it? 
61.	MR CANNON:  I suppose, my Lord, I had thought that simply now falls to us to decide whether it is pursued.  Certainly those who instruct me are going to consider very carefully whether there is any merit in proceeding.  It maybe that I need by way of disposal a formal order that the matter be remitted to the Magistrates' Court for trial but with an opportunity.
62.	LORD JUSTICE PILL:  I would have thought so.  The reason they started on abuse of process but I think you probably do need an indication from this court that they should proceed with the case.
63.	MR CANNON:  That might be right.  Strictly it is stayed at the moment.  It may be an order lifting the stay is what is required.
64.	LORD JUSTICE PILL:  Yes, we would lift the stay and direct that the magistrates to proceed.  You may offer no evidence.  But I think we should do that.  A differently constituted Bench?
65.	MR CANNON:  Yes please.
66.	LORD JUSTICE PILL:  Does anything else arise?  
67.	MR CANNON:  My Lord, I will take instructions (Pause).  My Lord, no.  I am very grateful.