There now follows a redacted version of the Skeleton Argument that was filed into court in support of applications to have two Magistrates’ Court convictions for failing to provide information required under statute in the right form, set aside as void ab initio for the want of due process.
SKELETON ARGUMENT IN SUPPORT OF THE DEFENDANT’S APPLICATION FOR THE SETTING ASIDE OF VOID SUMMARY CONVICTIONS
The Facts
1. Subsequent to two summary convictions for allegedly failing to give information in the right form in two prosecutions, each under the Road Traffic Offenders Act 1988 and the Road Traffic Act 1988, the Magistrates Court refused to file two STATUTORY DECLARATIONS [under the provisions of the Statutory Declarations Act 1845 and s14 of the Magistrates’ Courts Act 1980] into the registry despite repeated requests by the defendant.
2. In the first case, ############, the matter was appealed to the Crown Court on the advice of the Magistrates Court’s legal advisers, following which a STATUTORY DECLARATION was served upon the Designated Officer under the statutes of 1980 and 1845, following my discovery that I should have been provided with either a Case Management Form or a record of the judgment and reasons or directions given at the summary judgment hearing that was held in my absence, the lack of which comprises a clear breach of due process of law, thereby rendering the summary conviction void ab initio, along with all related orders. The court has compounded this failure by repeatedly refusing to file the STATUTORY DECLARATION as evidence, in breach of the 1845 and 1980 Acts.
3. In the second case, ############, after the information regarding the alleged offense was originally laid on or around 22 February 2011 [the date of the Notice of Intended Prosecution (NIP) in case number #############], resulting in those proceedings being cancelled by the STATUTORY DECLARATION of the defendant for the same want of due process; proceedings were then reissued by the prosecution on 10 October 2011, almost seven months after the only date that the alleged offense could be deemed to have taken place, 28 days after the date of the NIP, being 22 March 2011.
4. The defendant responded by attempting to file another STATUTORY DECLARATION, on the ground that the new proceedings were issued in contravention of the provisions of section 127 of he 1980 Act, which states that: “(1)Except as otherwise expressly provided by any enactment and subject to subsection (2) below, a magistrates’ court shall not try an information or hear a complaint unless the information was laid, or the complaint made, within 6 months from the time when the offense was committed, or the matter of complaint arose.”
5. Notwithstanding the erroneous claim made by the court’s legal adviser in a letter dated 04 November 2011, that the alleged offense took place some time between 31 March and 28 April, it is nevertheless unequivocally clear that the defendant was automatically deemed to be in breach of section 172 of the Road Traffic Act 1988 28 days after the date of the original NIP, on the basis that the information requested was not received within that period. The reissued proceedings have therefore been issued in breach of section 127 of the 1980 Act and must be held to be void ab initio, along with the first case, as the authorities cited in this application forcefully demonstrate.
6. Furthermore, it is entirely without merit at law and in equity for a court to claim that an offense is even capable of being committed within a period of 28 days, since, for such a lack of certainty no conviction is sustainable, equitable or lawful. Indeed, the very fact that the court has put forward this argument may stand as prima facie evidence of its gross negligence or a conspiracy to pervert the course of justice, in the event that the proceedings in both cases are not set aside as void ab initio.
The Void Court Order
7. A void order does not have to be obeyed because, for example, in Crane v Director of Public Prosecutions [1921], it was stated that if an order is void ab initio (from the beginning) then there is no real order of the court. Therefore, the defendant does not commit an offense if he ignores the void convictions and their related orders for enforcement in the present cases.
8. A void order results from a ‘fundamental defect’ in proceedings (Upjohn LJ in Re Pritchard (deceased) [1963] 1 Ch 502 and Lord Denning in Firman v Ellis [1978] 3 WLR 1). A ‘fundamental defect’ includes a failure to serve process where service of process is required (Lord Greene in Craig v Kanssen [1943] 1 KB 256); or where proceedings appear to be duly issued but fail to comply with a statutory requirement (Upjohn LJ in Re Pritchard [1963]). Failure to comply with a statutory requirement includes rules made pursuant to a statute (Smurthwaite v Hannay [1894] A.C. 494). Therefore, by its failure to serve due process and by acting outside of its limited jurisdiction the court has effected a fundamental defect in these proceedings.
9. In Peacock v Bell and Kendal [1667] 85 E.R. 81 it was held that nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly stated. It naturally follows that in the absence of an extant statutory provision for the refusal to file a STATUTORY DECLARATION, whether under the 1845 or the 1980 Act or otherwise, as evidence in the present cases, the court cannot sustain a claim that it had the right to do so and the defendant has been provided with no evidence to the contrary.
10. Similarly, if a higher court’s order is founded on a lower court’s void act or invalid claim, then the higher court’s decision will also be void (Lord Denning in MacFoy v United Africa Co. Ltd. [1961] 3 All ER), which renders the entire appeal process in the first case, including the order of the Crown Court, a nullity, especially given the fact that the court misdirected the defendant to file a Notice of Appeal, rather than a STATUTORY DECLARATION, in the hearing of 22 June 2011.
11. Furthermore, a person affected by both a void or voidable order has the right – ex debito justitiae – to have the order set aside (which means that the court does not have discretion to refuse to set aside the order or to go into the merits of the case) (Lord Greene in Craig v Kanssen [1943]). The procedure for setting aside a void order is by application to the court which made the void order, although it can also be set aside by appeal, even though an appeal is not necessary (Lord Greene in Craig v Kanssen [1943]), or it can quashed or declared invalid by Judicial Review (where available) and where damages may also be claimed.
12. Although an appeal is not necessary to set aside a void order, if permission to appeal is requested, even if out of time, the court should grant permission because time does not run because the order is void and the person affected by it has the right to have it set aside (Lord Greene in Craig v Kanssen [1943]. A void order is also incurably void and all proceedings based on the invalid claim or void act are also void. Even a decision of the higher courts (High Court, Court of Appeal and Supreme Court) will be void if the decision is founded on an invalid claim or void act, because something cannot be founded on nothing (Lord Denning in MacFoy v United Africa Co. Ltd. [1961]).
13. A void order is void even if it results in a failure of natural justice or injustice to an innocent third party (Lord Denning in Wiseman v Wiseman [1953] 1 All ER 601). It is also never too late to raise the issue of nullity and a person can ignore the void order or claim and raise it as a defence when necessary (Wandsworth London Borough Council v. Winder [1985] A.C. 461; Smurthwaite v Hannay [1894] A.C. 494; Upjohn LJ in Re Pritchard (deceased) [1963]; Lord Denning in MacFoy v United Africa Co. Ltd. [1961]). Furthermore, in Firman v Ellis [1978] Lord Denning affirmed that: (i) a void act is void ab initio.
14. In Re Pritchard (deceased) [1963] Upjohn LJ confirmed that: (i) a fundamental defect in proceedings will make the whole proceedings a nullity; (ii) a nullity cannot be waived; (iii) it is never too late to raise the issue of nullity; and (iv) a person affected by a void order has the right – ex debito justitiae – to have it set aside. For the avoidance of doubt in the present cases, this means that the court does not have the right to refuse this application or to convene a hearing of its merits, as per Lord Greene in Craig v Kanssen [1943] and other authorities cited herein, by which the court is bound.
15. In addition to the fundamental defects in due process, it has also been the defendant’s contention since these matters arose that, in any event, both proceedings are void and illegal by virtue of Article 12 of the Declaration of Rights 1688, as was acknowledged by Parliament in the enactment of the Bill of Rights of the same year: “12. That all Grants and Promises of Fines and Forfeitures of particular persons before Conviction are illegal and void.” This point is a standalone ground for both proceedings to be set aside.
16. In Wiseman v Wiseman [1953] 1 All ER 601, Lord Denning confirmed that: (i) the issue of natural justice does not arise in a void order because it is void whether it causes a failure of natural justice or not; (ii) a claimant or defendant should not be allowed to abuse the process of court by failing to comply with a statutory procedure and yet keep the benefit of it and for that reason also a void act is void even if it affects the rights of an innocent third party.
17. Therefore, in summary of the foregoing authorities: (i) an application to have a void order set aside can be made to the court which made the void order; (ii) the setting aside must be done under the court’s inherent power to set aside its own void order; (iii) the court does not have discretion to refuse the application because the person affected by the void order has a right to have it set aside; (iv) an appeal is not necessary because the order is already void; (v) if permission to appeal is sought even if out of time permission should be given because as the order is void time does not run; it is never too late to raise the issue of nullity and the person affected by the void order has a right to have it set aside; (vi) a void order can be quashed or declared unlawful by Judicial Review where available and where damages may also be claimed; (vii) the whole proceedings is void if it was based on a void act; (viii) a void order does not have to be obeyed because it has no legal effect from the beginning; (ix) as it is never too late to raise the issue of nullity, a person can ignore the void order and rely on nullity as a defence when necessary; (x) a void order is void even if the nullity is unjust or injustice occurs to an innocent third party; (xi) an order of a court of limited jurisdiction is void if it cannot be expressly shown, whether by relying upon statutes or procedures subject to statutes, that the court has the jurisdiction to act, or if the order is founded on an invalid claim or void act; (xii) no court (not even the Supreme Court) has jurisdiction to give effect to a void act and the duty of the court is only to interpret and apply the law not to reform or create it as such power rests only with Parliament.
Matters of Serious Public Interest
18. It is my understanding that there is no statutory provision for the court to refuse to file a STATUTORY DECLARATION, except in circumstances when, following the objections of the defendant, the Justices Clerk has convened a hearing in order to convey the reasons for doing so, as well as the legal authority, which has not happened in either of the instant cases and in the absence of which the court is in clear breach of its obligations to comply with due process of law.
19. In simple terms, only the prosecution can raise objections to the contents of such a STATUTORY DECLARATION by filing a complaint against the defendant after the declaration has been filed by the court, but only in the event that they are in possession of prima facie evidence of perjury, which could never be said in this instance, since, even in the unlikely event that the points of law made by the defendant are rebutted with compelling evidence to their contrary, a man does not commit any offense when he genuinely believes he is simply exercising his legal rights, as in these cases. In effect, the defendant has a lawful excuse to ignore the orders issued in any void proceedings.
20. However, the inevitable consequence of the court’s void summary convictions has been to cause civil injury to the defendant by intervening in this matter without authority or jurisdiction or legal recourse, in its abject failure to provide a fair and independent tribunal in breach of Article 6 of the Human Rights Act 1998, which states: “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.” In such circumstances, no tribunal could be reasonably said to be either independent or impartial.
21. In short, the court and its officers have acted without the authority to do so, the legal effect of which is to place the court’s actions outside of its jurisdiction, as well as bringing disrepute and dishonour upon the Criminal Justice System, by arguing the case for the prosecution in a matter in which the court must remain entirely independent and impartial, as well as competent in its administration of justice. This is clearly an issue that falls within the scope of matters of serious public interest.
The unlawful actions of the court
22. The court’s Legal Team Manager, Mr H, with no first-hand knowledge of the facts of the matters in hand, has blatantly interfered with due process by attempting to sustain the prosecution’s case, for which he may be held personally liable along with the court for which he acts. In these actions he has received the unequivocal support of both the Justices Clerk and the Deputy Justices Clerks of the court, Mr and Mrs L, who have not declared whether or not they are related, either by blood or marriage, notwithstanding the fact that they share the same name, from which a question over a potential conflict of interests may inevitably arise upon further investigation.
23. Mr H stated in his letter dated 03 November 2011 that I knew of the adjourned proceedings on 22nd June 2011, on the basis that my son attended the hearing in an attempt to deal with the case on my behalf, which Mr H claimed the court did not permit. This is completely erroneous since there is no reasonable doubt that my son appeared on my behalf under Power of Attorney on that day, which, following some discussion with the court’s legal advisor and the advocate for the CPS, the court did in fact permit, but only after my son’s unequivocal declaration that the defendant was not made aware that he was convicted in his absence until his son was informed by the advocate for the prosecution when he arrived at the hearing that day. Indeed, it was during this discussion that my son originally complained on my behalf that due process had clearly not been followed.
24. The court then formally accepted the Special Appearance by my son and the legal advisor advised him to file a hand-written Notice of Appeal, which he did without further discussion; following which he presented the application on my behalf to the magistrates, who duly granted permission to appeal to the Crown Court, this diverting the proceedings away from the failure of due process.
25. Furthermore, these issues have been completely ignored by the court following service of NOTICE OF OFFICIAL COMPLAINT dated 09 November 2011 by Royal Mail Recorded Delivery, which is clearly evident in a letter from the court dated 25 November 2011 and signed by Mrs G, Deputy Justices Clerk.
26. These points clearly demonstrate that the court has not satisfactorily recorded the facts of these proceedings, in breach of its obligation to do so under the Criminal Procedure Rules, on the basis that Mr H wrongly stated that the appearance under Power of Attorney was not permitted when it most certainly was, thereby discrediting himself as a witness or authority in these matters.
27. Mr H also falsely claimed in his letter of the 3rd of November that, since I was warned in the notice of the initial hearing that failure to attend the trial could result in the case proceeding in my absence, the court’s decision not to give notice that the defendant had been found guilty in his absence or the reasons why the decision was reached or directions given, is thereby justified.
28. This decision directly resulted in my person having no cognisance that the trial had proceeded in my absence, until my son was informed at the subsequent hearing on the 22nd of June that I had been found guilty and was now appearing for the purposes of being sentenced, allowing me no time to adequately prepare an appropriate statement or application, resulting in a Notice of Appeal being filed upon the advice of the court, when a STATUTORY DECLARATION should have been filed on the grounds described herein.
29. Had my son been furnished with the knowledge that he has since gleaned through his own research; the declaration would have been filed instead of the Notice of Appeal, contrary to the advice of the court, which must bear the liability of the defendant’s [reserved] costs whenever a decision is cancelled for the want of due process of law, which the Magistrates’ Court is obviously attempting to avoid at the expense of due process.
30. The notice of the hearing of 22nd June contained no statement about what was decided summarily in my absence or that the hearing was for sentencing. In actual fact, I was given the impression by a letter sent by the Deputy Justices Clerk a few days before the summary judgment that the matter was about to be abated, as I had been repeatedly asking the court to do. The letter stated that the final application for the cancellation of proceedings was “receiving attention”. Since there was no further instruction that I should still attend court, I very reasonably presumed that proceedings were in the process of being cancelled, as per my application, and subsequently decided not to attend the hearing as a result, which I would not have done had I not received the letter from the Deputy Justices Clerk.
31. More recently, in response to the NOTICE OF OFFICIAL COMPLAINT mentioned in the foregoing, Mrs G appears to believe that ‘proceedings’, as intended within the meaning of section 14 of the Magistrates’ Courts Act 1980, means the actual hearing itself, when in fact it means everything that transpires from the date the information is originally laid before the court.
32. In the most straightforward terms, the court’s failure to apply due process of law resulted in the defendant having no knowledge that he had been convicted until his Special Appearance at the sentencing hearing, at which juncture he was denied an opportunity to present his defence. Therefore, it was perfectly admissible to make and serve upon the court a STATUTORY DECLARATION for filing under s14 of the 1980Act, as well as the 1835 Act.
33. The argument put forward by the court’s Legal Team, as supported by the Justices Clerk and the Deputy Justices Clerk to the court, that just having knowledge that the trial might have proceeded in my absence justifies the court’s failure to issue either a Case Management Form and/or notice of the judgment, reasons and directions, is somewhat moot, given the fact that an application to have the proceedings cancelled was receiving the attention of the Deputy Justices Clerk a few days before the trial, who neglected to request that the defendant attend the hearing in any event.
34. To make matters even more deplorable, notwithstanding the failed appeal, the Crown Court directed that the fine and costs order issued to the defendant in the first matter could not be enforced until 24 January 2012, yet the court’s bailiff firm served an undated “NOTICE OF DISTRESS WARRANT”, on or shortly before 05 December 2011, threatening unlawful fees, seizure of goods and forced entry of premises.
35. The Justices Clerk has already accepted responsibility in writing, for what must be treated as a breach of the order of the appellate court, notwithstanding his claim that the bailiffs were instructed to act in error, which would, in and of itself, comprise gross incompetence and professional negligence.
36. In relation to the reasons why the court has refused to file the STATUTORY DECLARATION in the second matter, the defendant has received nothing substantive; merely an erroneous claim that the offense was committed during a period of 28 days, despite the fact that this is literally and physically impossible, thereby allowing it fall within the six months prescribed by section 127 of the 1980 Act. This may well comprise prima facie evidence of either gross negligence or conspiracy to pervert the course of justice. In any event, the proceedings must be set aside as void ab initio.
Conclusion
37. For the reasons given in the foregoing, the court must immediately set aside the void convictions and all related orders in both cases, with costs being awarded to the defendant, who is under no obligation to take part in any further proceedings. In the event that the order applied for is not granted, the defendant will file a without notice application for damages under Judicial Review.
DRAFT ORDER
Upon receiving the written application of the defendant, it is hereby ordered that:
1. The entire proceedings in both cases are set aside as void ab initio for the want of due process of law.
2. The costs reserved by the defendant must be paid within 7 days of the date of this order.
3. The prosecution are not at liberty to reissue these proceedings in any venue.
THE OUTCOME
Two weeks after receiving the Skeleton Argument, a warrant was issued for the defendant’s arrest for non-payment of the unlawful fines. Under protest and duress, the defendant was bailed to appear at the Magistrates’ Court a few days later on 10 April 2012.
There was much resistance encountered from the court staff, who attempted to prevent me from representing the defendant under power of attorney before we had even entered the court, but following a private meeting with the senior legal adviser, two hours after the time listed for the third enforcement hearing, the Chief Magistrate agreed to do the following upon the application of the defendant:
1. Cancel the arrest warrant.
2. Cancel the fines.
3. Adjourn proceedings for five weeks, during which time the court will ask the Crown Prosecution Service to drop their claim for costs and apply to the government for a waiver of the ‘victim’s surcharge’.
All of this was agreed by the Magistrates in order to avoid an application for judicial review by the defendant, in which damages would be claimed as well as costs, for the court’s abject failure to meet its statutory obligations. Its legal adviser agreed that the court should have accepted the two Statutory Declarations, which the defendant repeatedly attempted to file under the provisions of section 14 AND 127 of the Magistrates’ Courts’ Act 1980 and the Statutory Declarations Act 1845. She also concurred that the courts legal department had acted ultra vires – without authority or jurisdiction – when they attempted to negotiate a private settlement on behalf of the prosecution, in matters in which they are mandated by statute and convention to remain entirely independent and impartial, as well as competent, throughout the entirety of proceedings.
These terms were accepted by the Magistrates on the grounds that there is no victim in existence and the proceedings are void ab initio, along with any and all related orders and directions, since there is no express statutory provision that authorises a Magistrates’ Court to refuse to file a Statutory Declaration as evidence.
In the first instance, the defendant was not notified of a conviction in his absence, in breach of section 14 of the 1980 Act, and in the second case, the proceedings were reissued almost seven months after the information was originally laid before the court, in breach of section 127 of the same Act. Furthermore, in any event, the entire proceedings are nullified by article 12 of the Declaration and Bill of Rights of 1688, which forbids the practice of imposing fines upon the people without the prior judgment of a court. Pursuant to the judgment of Laws LJ in the famous Metric Martyrs case, since the Bill of Rights has not been expressly repealed by Parliament, no court has the authority to discard its provisions.
Upon the advice of the court’s legal adviser, the Chief Magistrate declared that the defendant was perfectly entitled to take the actions he has taken and promised that there would be a thorough investigation into the complaints made about the breaches of due process. However, the court has already agreed that the enforcement proceedings are cancelled. Another hearing has been listed to convene in five weeks time, during which, the Chief Magistrate promised, the court would do everything necessary to “settle and close these matters in the most amicable way possible.” That means no points, no endorsements, no fines, no convictions – all void ab initio – x2, provided the defendant withdraws his intention to take further action against the court.
Five weeks later, having been served no written notice of the final hearing, following a telephone call from a representative of the court, the defendant appeared before three stern-looking Magistrates, fully expecting costs and surcharges would be waived, in accordance with directions given by the Magistrate presiding over the previous hearing.
Almost inexplicably, the Magistrates contended that the court had no record of the enforcement proceedings being cancelled, and as far as they were concerned, the hearing had been convened to assess the defendant’s ability to pay the fine. The court then refused to allow the defendant’s representative to represent his objections, despite the precedents already set by allowing him to do so at previous hearings, including an appeal to the Crown Court before a supposedly eminent Queen’s Council.
The defendant to ordered to pay the fine or face arrest and imprisonment, to which he reluctantly agreed after refusing to fill out a means-testing form, expressing to the Magistrates his utter disgust at the way he had been coerced into paying the fine under threat and duress, before declaring that his faith in the so-called Justice System had been effectively destroyed by what he considered to be a misrepresentation of the facts.
Thus far, although the defendant expressed to the court his intention to apply to the High Court for permission to proceed with a claim of Judicial Review to have the proceedings set-aside, having recently experienced another miscarriage of justice in the High Court, he has been forced to conclude that a just verdict is simple unobtainable in Her Majesty’s Courts if the opposing party is a representative of the Crown’s interests.
According to the Sentencing Council’s website, 1,559,000 defendants were proceeded against in the Magistrates’ Courts in 2011, with 1,219,000 being found guilty. 102,200 defendants were sentenced at the Crown Court during the same period. All in all, 1,299,250 offenders were sentenced in 2011 (all offences) of which 119,800 were for theft and handling stolen goods offences; 60,100 were for drug offences; 42,000 were for violence against the person offences; and 24,900 were for burglary offences.
If we subtract the sum of those sentences given for the offences listed from the total sentences handed down and then we subtract the 102,200 Crown Court sentences [1,299, 250 – 246,800 = 1,052,450 – 102,200], we are left with a rather stunningly illuminating omission on the part of the Sentencing Council; the vast majority of the 950, 250 other sentences given in the Magistrates’ Courts were for non payment of fines levied by the Crown for various road traffic offences, or for failure to pay Council Tax, which represents 79.38% of all Magistrates’ Courts proceedings.
According to the Ministry of Justice website: “The total value of fines paid in magistrates’ courts was £74 million in the second quarter of 2012, compared with £69 million in the corresponding quarter of the previous year.” If we assume that the same figure was paid in fines during the other three quarters of 2011, the total collected for the Crown by the Magistrates’ Courts in that year would have been £276 million.
http://sentencingcouncil.judiciary.gov.uk/facts/facts-and-figures.htm
http://www.justice.gov.uk/statistics/courts-and-sentencing/judicial-quarterly
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