Divisional Court rejects bid by major retailer to have knife sale case thrown out as abuse of process

Retailer Argos has failed in a bid to have proceedings brought against it by London Borough of Barking & Dagenham stayed as an abuse of the process of the court.

In London Borough of Barking and Dagenham v Argos Ltd [2022] EWHC 1398 (Admin) Lord Justice Edis, sitting with Mrs Justice McGowan, said that the court faced a case in which there were two appeals by case stated and one claim for judicial review.

These all arose from a hearing in Romford Magistrates Court by District Judge Holdham, who had decided the council’s application for a summons over the sale of a knife to a minor was a nullity as it did not demonstrate the relevant time limit for prosecutions. Barking & Dagenham then appealed against this.

DJ Holdham also ruled she had no jurisdiction to hear Argos’s argument that the prosecution was an abuse of the process of the court.

This too was the subject of an appeal by case stated by Argos to protect its position if the council’s appeal against the nullity ruling succeeded, which would resurrect the proceedings.

Edis LJ said: “The judge did not therefore decide whether the abuse of process argument succeeded or not.

“The judicial review claim, issued by Argos, contends that she should have done and seeks a ruling from this court exercising its concurrent jurisdiction with that of the Romford Magistrates' Court that these proceedings are an abuse of process.

“The [council] responds that we should simply remit that issue to the judge for determination, and that, if we do decide the issue, we should dismiss the application because these proceedings are not an abuse of process.”

Barking & Dagenham issued a summons to Argos over the sale of a knife to a person aged under 18 contrary to s.141A(1) Criminal Justice Act 1988.

Citing various legal authorities, Edis LJ said the case should return to the magistrates' court for trial.

On the judicial review claim for abuse of process, Edis J said the Divisional Court should deal with the application because “we have heard full argument, at considerable expense to the parties, one of whom is a public authority”.

He noted the Court had “invested substantial judicial time in reading the authorities and documents” and that the argument was “a complex one, and it is suitable for determination by a divisional court”.

Argos argued it was an abuse of the process for Barking & Dagenham to prosecute it when it received and followed advice from Milton Keynes Council, its primary authority partner for trading standards matters, and so it had a defence of due diligence.

Barking & Dagenham contended this was wrong as the Criminal Justice Act 1988 does not apply the Regulatory Enforcement and Sanctions Act 2008 (RESA).

Edis J said Barking & Dagenham was right as its enforcement action was taken under section 141A of the Criminal Justice Act 1988 and “until its recent amendment, the 1988 Act was not a relevant enactment for the purposes of RESA”.

He added: “Another factor of importance is the fact that [Barking & Dagenham] is not the person who gave the advice, and now seeks to go back on it.

“Outside the statutory scheme of RESA, the [council] has the responsibility for enforcement in its geographical area, and decisions of Milton Keynes do not bind it. Argos knows this. [Barking & Dagenham] has done nothing to engender any sense of unfairness.”

He concluded: “Parliament has decided that it is the court which is the body to determine these matters, not Milton Keynes Council.

“Milton Keynes Council has (or at least had) no responsibility for the operation of Argos at Sainsbury's, High Road, Chadwell Heath. If Argos can show that it diligently followed the Milton Keynes advice and the court agrees with Milton Keynes that the precautions were sufficient, Argos will be acquitted.

“In this case, this is likely to include consideration of the training and supervision of the seventeen-year-old shop assistant, among other things. There is nothing unfair about the court undertaking that exercise.”

Mark Smulian