In deciding whether to issue a summons, a justice of the peace or district judge (magistrates’ court) must ascertain: (i) whether the allegation is an offence known to the law, and, if so, whether the essential ingredients of the offence are prima facie present; (ii) that the offence alleged is not time-barred; (iii) that the court has jurisdiction; and (iv) and whether the informant has the necessary authority to prosecute. If so, the justice ought generally to issue the summons unless there are compelling reasons not to do so, such as that the application is vexatious, which may involve the presence of an improper ulterior purpose and/or long delay, or is an abuse of process, or is otherwise improper. The justice should therefore consider the whole of the relevant circumstances to enable him to satisfy himself that it is a proper case to issue the summons and, even if there is evidence of the offence, should consider whether the application is vexatious, an abuse of process, or otherwise improper. Whether the applicant has previously approached the police may be a relevant circumstance. There is no obligation on the justice to make inquiries, but he may do so if he thinks it necessary. A proposed defendant has no right to be heard, but the justice has a discretion to require the proposed defendant to be notified of the application and to hear the proposed defendant if he thinks it necessary for the purpose of making a decision (paras 22, 44).

While the Code for Crown Prosecutors does not apply to private prosecutions, a private prosecutor is subject to the same obligations as the public prosecuting authorities to act as a minister for justice, including the duty to ensure that all relevant material is made available both for the court and the defence. Advocates and solicitors who have the conduct of private prosecutions must observe the highest standards of integrity, of regard for the public interest and duty to act as a minister for justice in preference to the interests of the client who has instructed them to bring the prosecution, owing a duty to the court to ensure that the proceeding is fair (para 23, 44).

A duty of candour applies to a without notice application for the issue of summonses. The importance of compliance with the duty cannot be overstated given that it is the foundation upon which decisions on the grant of summonses, which can have far-reaching consequences, are taken. The duty is one of full and frank disclosure, which necessarily includes a duty not to mislead the judge in any material way and which requires the disclosure to the court of any material which is potentially adverse to the application, or might militate against the grant, or may be relevant to the judge's decision, including any matters which indicate that the issue of a summons might be inappropriate. The withholding of material information may be a critical factor in determining whether a summons should be set side as an abuse of the process of the court. The better view is that a summons should be quashed if f it is shown that the inaccurate and/or non-disclosure by the prosecutor might, rather than would, have made a difference to the judge’s decision (paras 24–28, 38, 44).

The High Court and the magistrates’ court in principle have concurrent jurisdiction in relation to the issue of abuse of process save for a limited category of cases involving infractions of the rule of law outside the narrow confines of the actual trial or court process. The wide category of cases over which the magistrates’ court has jurisdiction includes investigation of the bona fides of the prosecution or of whether the prosecution has been instituted oppressively or unfairly, including, since a justice of the peace has jurisdiction to refuse to issue a summons that is vexatious, the jurisdiction to stay proceedings on such a summons at a later stage, although it is open to the magistrates’ court to require the matter to be pursued in the High Court. The fact that the magistrates’ court has a duty to send an indictable-only case to the Crown Court forthwith may not necessarily preclude it from exercising its abuse of process jurisdiction, although where the point is novel or complex, the magistrates’ court should normally leave it for resolution in the Crown Court, or the High Court, as appropriate. The abuse of process jurisdiction is to be exercised sparingly (para 30, 44).

Where, therefore, lawyers for the president of a Polish company, acting as a private prosecutor, laid informations against the claimants, a United Kingdom company and its managing director, alleging fraud in relation to business dealings between the two companies, the magistrates’ court issued summonses against the claimants for the alleged offences, and the claimants applied to have the summonses dismissed, or alternatively to stay the proceedings as an abuse of process, on the grounds that the prosecutor had failed to disclose to the court material, namely the existence of a settlement agreement in respect of the matters prosecuted against, which would undermine the summonses and that his motive was to advance his position in ongoing arbitration proceedings in Poland or to derail them, and where the district judge refused to dismiss the summonses and ruled that the issue of abuse of process should be determined in the Crown Court, and the claimants sought judicial review of that decision—