We received this letter from the Crown Prosecution Service (CPS) to Mr Justice Hamilton some time ago, but decided that might be best not to publish it in the hope that the CPS would not pursue the judicial review. However we are now publishing it.
F.A.O District Judge Angus Hamilton
Stratford Magistrates' Courts
Stratford Magistrates' Courts
Dear District Judge Hamilton
31 May 2016
Our Ref: 01/KF/4656015
DPP V. DITCHFIELD & ORS- PRE ACTION PROTOCOL FOR JUDICIAL REVIEW (LETTER BEFORE CLAIM)
We write further to your decision to decline to state a case in the above captioned proceedings. The decision in question is dated 5 May 2016, but was communicated to the Crown Prosecution Service on 20 May 2016.
The purpose of this letter is, respectfully, to invite your reconsideration of the decision for reasons set out below. Should you maintain your decision not to state a case the Crown Prosecution Service will have no alternative other than to apply for judicial review of your refusal, although, for reasons which are obvious, it is very much hoped that this course can be avoided.
As you are aware, the Crown Prosecution Service's application to state a case posed two questions for consideration by the High Court. Your refusal to state a case is made on the basis that the application is frivolous within the meaning of that term as set out in R v Norlh West Suffolk (Mildenha/1) Magistrates Court  Env LR 9. The Crown Prosecution Service maintains its position that its application is and was properly made.
The starting point is section 111( 1) of the Magistrates Court Act 1980 rthe MCA 1980"). This section sets out the procedure for stating a case and makes clear that the function of the appellate court is to determine whether the decision of the magistrates' court is "wrong in law or is in excess of jurisdiction." The remedy of an appeal by way of case stated is available in relation to an error of law or a decision taken in excess of jurisdiction. The authorities make it clear that a decision on a questions of fact may give rise to an appeal by way of case stated, in particular, where it is alleged to be a decision of fact that no reasonable court could properly have reached on the evidence before it: see Oladimeji v DPP  EWHC 1199 (Admin), a copy of which is enclosed for ease of reference.
Section 111 (5) of the MCA 1980 provides that justices may refuse to state a case where they are of the opinion that the application is "frivolous". In the Mildenhall case, supra, the Court of Appeal considered the meaning of frivolous in this context. It was held that a refusal to state a case may arise "when the court considers the application to be futile, misconceived, hopeless or academic." Lord Bingham CJ observed that a refusal of a case on grounds of frivolity is not a decision to which justices will often come. For the reasons set out below, it is respectfully submitted that the application in the instant case is not futile, misconceived, hopeless or academic. Indeed the contrary is the case.
In the course of your judgment you found that the availability of the defence contained in section 3 of the Criminal Law Act 1967 was "in a state of flux, development and consequent uncertainty. I therefore applied the principle that any uncertainty must be resolved in the defendant's favour and I agreed to hear the arguments in relation to the potential 'prevention of crime' defence and the supporting expert evidence". The decision to leave open the defence of the prevention of crime and the decision to admit evidence relating to that defence were clearly decisions of law. The observation that the law is in a state of flux is, with respect, difficult to reconcile with your refusal to state a case. The acknowledgment that the law is in a state of development suggests that clarification of the scope of the defence contained in section 3 is a matter of public importance and properly a matter for consideration by the High Court.
In the course of your judgment you also found that the "force" used by the defendants fell within the ambit of section 3. This interpretation of the phrase "use of force" also amounted to a decision of law. The case law referred to by the parties in the course of oral and written legal submissions acknowledged that whether actions such as those taken by the defendants could amount to force within the ambit of the section 3 defence has not yet been authoritatively determined. Hitherto, the courts have been prepared, for the sake of the argument, to assume that activities such as chaining oneself to a vehicle and pouring sugar in a petrol tank fell within the ambit of section 3. In so doing it has been noted that the question as to whether these types of activities involved the use of force for the purposes of section 3 would have to be decided on another occasion.
This issue of law is by no means frivolous and is properly included within question one for consideration by the High Court
As noted above, questions of law may also arise where a decision of fact is arguably one which was not open to the court. For this reason, ground 4 as set out in the Crown Prosecution Service's application (dated 29 April 2016) contends that in acquitting the defendants, on the basis that their actions were objectively reasonable in the context of a section 3 defence, was not a decision properly open to the court. This amounts to an error of law and is reflected in question 1 of the Crown Prosecution Service's application.
In Kracher v Leicester Magistrates Court  EWHC 4628, the High Court emphasised the importance of challenging magistrates' courts decisions of law by way of case stated, rather than by way of judicial review. Again, we attach a copy for ease of reference. The questions in this case are plainly decisions of law and an appeal by way of case stated is unquestionably the appropriate route of appeal.
In conclusion, it is respectfully submitted that the questions included within the application are properly matters for consideration by the High Court and it would, accordingly, be appropriate to state a case.
For the reasons set out above, we respectfully invite you to reconsider your refusal to state a case. This will avoid the additional costs of seeking judicial review of your decision, which should be unnecessary and certainly is something the Crown Prosecution Service is anxious to avoid.
In accordance with paragraph 20 of the pre-action protocol for judicial review, we request that a response to this letter be provided by email (to email@example.com) within 14 days (i.e. by 14 June 2016).
A copy of this letter has been provided to the legal representatives of the acquitted defendants in this case as prospective Interested Parties.
Crown Prosecution Service