What must a Magistrates’ Court consider when it is asked to issue a summons?

When considering whether to issue a summons:

(1) The magistrate must ascertain whether the allegation is an offence known to the law, and if so whether the essential ingredients of the offence are prima facie present; that the offence alleged is not time-barred; that the court has jurisdiction; and that the informant has any authority necessary to prosecute.

(2) If so, generally the magistrate ought to issue the summons, unless there are compelling reasons not to do so – most obviously 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.

(3) Hence magistrates should consider the whole of the relevant circumstances to enable them to satisfy themselves 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.

(4) Whether the applicant has previously approached the police may be a relevant circumstance.

(5) There is no obligation on magistrates to make enquiries, but they may do so if they think it necessary.

(6) A proposed defendant has no right to be heard, but magistrates have a discretion to:

• Require the proposed defendant to be notified of the application.
• Hear the proposed defendant if they think it necessary for the purpose of making a decision.