Extraordinary situation

[GoSeigen]

Looking for general thoughts here, I can't give too much detail because the law prohibits publication of details which might identify the case/parties to the case.

What should one do when a summons is issued by a magistrates court on an official form for that purpose, but there has patently been no crime and the law stated to have been contravened is prima facie not applicable to the situation -- further the summons document has not been completed so that details of the alleged crime are left blank and it appears the document has been issued solely as a pretext to force the defendant to court to discuss an entirely different (probably civil) matter in the presence of the court officials?

On enquiry at the court the case file is entirely empty save for the issued summons document. In these circumstances it is difficult to take the summons at all seriously, yet non-appearance at court is an imprisonable offence. Given the extraordinary irregularity of the service and failure to follow any of the law, regulations and rules of court pertaining to procedure in prosecuting the crime, is there a procedural exception that can be taken to the entire summons process?


GS
P.S. I hasten to add this is not UK, but similar legal process.

[tjh290633]

Isn't this analogous with the sub poena, as used in the USA?

TJH

[GoSeigen]

Isn't this analogous with the sub poena, as used in the USA?

TJH

It's not a subpoena. There is a subpoena process in this jurisdiction, but this seems to be plain abuse of a legal process to achieve some other aim.

An example is that the relevant law states that the summons must be completed by the police if they are satisfied on the evidence of an affidavit from a complainant that a crime has occurred, and then served by the police on the accused and submitted to the court, yet this summons originated from one of the clerks of the court who simply used the police to serve the document. No affidavit from the complainant appears to exist and the police had no information on which to assess whether a crime had occurred. The police have no record of any complaint. So the correct lawful procedure completely ignored.


GS

[scrumpyjack]

The defendant could presumably just turn up and refuse to discuss anything other than the matter for which the summons was issued?

[Clitheroekid]

P.S. I hasten to add this is not UK, but similar legal process.

On so little information nobody could hope to give meaningful advice even if it were in the UK.

The fact that it's in an unnamed foreign jurisdiction makes the question impossible to answer.

[GoSeigen]

I apologise for the sketchy details in the OP and follow-up.

The intention is to apply to the court to dismiss the case in light of the procedural irregularities, listing in the supporting affidavit the defects that indicate there has been some impropriety on the part of a particular court official. In the affidavit is it best to a. just state facts which support the application and demonstrate the problems surrounding the case, or b. hint at the impropriety suspected or c. explicitly complain and pray an order to investigate the situation or claim some particular relief from the court system itself? Is it appropriate to draw attention to the name of the court clerk who signed off the documents and presumably assisted the complainant or should he just be referred to as the clerk? Or would it be more appropriate/usual where impropriety is suspected to raise it in a different forum, e.g. a complaint to the Court management or an application under another law or referral to a higher court?

We're quite taken aback at the brazenness of this ill-founded case and can't help but suspect that 1. this is not the first or last instance and 2. that abuse of this law and associated regulations puts genuine complainants at risk because a cavalier approach to procedure would allow defendants to have their case dismissed and evade justice. Of course it also brings the court and justice system into disrepute.


GS

[88V8]

....In the affidavit is it best to a. just state facts which support the application and demonstrate the problems surrounding the case, or b. hint at the impropriety suspected or c. explicitly complain and pray an order to investigate the situation or claim some particular relief from the court system itself?

....We're quite taken aback at the brazenness of this ill-founded case and can't help but suspect that 1. this is not the first or last instance and 2. that abuse of this law and associated regulations puts genuine complainants at risk because a cavalier approach to procedure would allow defendants to have their case dismissed and evade justice. Of course it also brings the court and justice system into disrepute.

Not knowing the soundness of the courts system and the police where you live, I would go for a.
Depending on the outcome, you could then raise a subsequent complaint against the court official, but even in the UK one might wonder whether the court will just circle the wagons and blow you off.
Unless you have time and money to burn I would do whatever will cause you the least grief and leave the crusading to someone else.

V8

[didds]

The defendant could presumably just turn up and refuse to discuss anything other than the matter for which the summons was issued?

and as no matter was listed on the summons there is nothing to discuss

[scrumpyjack]

The defendant could presumably just turn up and refuse to discuss anything other than the matter for which the summons was issued?

and as no matter was listed on the summons there is nothing to discuss

Easy then. Turn up and say nothing

[servodude]

....In the affidavit is it best to a. just state facts which support the application and demonstrate the problems surrounding the case, or b. hint at the impropriety suspected or c. explicitly complain and pray an order to investigate the situation or claim some particular relief from the court system itself?

....We're quite taken aback at the brazenness of this ill-founded case and can't help but suspect that 1. this is not the first or last instance and 2. that abuse of this law and associated regulations puts genuine complainants at risk because a cavalier approach to procedure would allow defendants to have their case dismissed and evade justice. Of course it also brings the court and justice system into disrepute.

Not knowing the soundness of the courts system and the police where you live, I would go for a.
Depending on the outcome, you could then raise a subsequent complaint against the court official, but even in the UK one might wonder whether the court will just circle the wagons and blow you off.
Unless you have time and money to burn I would do whatever will cause you the least grief and leave the crusading to someone else.

V8

I've just had to clean up my coffee after I briefly thought you referenced some lost John Wayne porno ....

[GoSeigen]

A magistrate dealt with this case in court today, in chambers with only the two parties and an interpreter present. The magistrate agreed the service was irregular, with both incorrect forms served and failure to serve accompanying affidavits. However, he wouldn't entertain a dismissal of the case, but ordered that the hearing be adjourned to allow the applicant/complainant an opportunity to re-serve his documents correctly.

Hopefully when service is effected this time the nature of the complaint will be clearer.


One or two juicy comments from the magistrate:
"[Given the personal nature of the application] I will hear the case in chambers (public excluded). The witness will have to wait outside because if she listens to the discussion she may tailor her evidence based on what is said."
"No one will take minutes as this is not a proper hearing, any minutes necessary will be written by me"
"The police served the original notice but as they made a mess of it we cannot trust them to carry out service again"



GS

[GoSeigen]

A notice of motion and proper application have been served now. Bizarrely the new application is for a completely different order under another act entirely. There is a new case number. So even though the magistrate denied a dismissal it seems the applicant has abandoned the previous application.

The criminal accusation also appears to have withered away, dismissed as a "mistake" -- not the court's mistake, mind you, but blamed on the police who were instructed to serve the documents!


GS

[88V8]

A notice of motion and proper application have been served now. Bizarrely the new application is for a completely different order under another act entirely. There is a new case number. So even though the magistrate denied a dismissal it seems the applicant has abandoned the previous application.
The criminal accusation also appears to have withered away, dismissed as a "mistake" -- not the court's mistake, mind you, but blamed on the police who were instructed to serve the documents!

As a matter of curiosity are you living in what might generally be regarded as a civilised country?

V8

[GoSeigen]

A notice of motion and proper application have been served now. Bizarrely the new application is for a completely different order under another act entirely. There is a new case number. So even though the magistrate denied a dismissal it seems the applicant has abandoned the previous application.
The criminal accusation also appears to have withered away, dismissed as a "mistake" -- not the court's mistake, mind you, but blamed on the police who were instructed to serve the documents!

As a matter of curiosity are you living in what might generally be regarded as a civilised country?

V8

Ha ha, it aspires to be one, but I wonder sometime... the courts are one of the branches of state and we know how poorly the state performs at times!

I'm coming to the conclusion that there is an "arrangement" between the applicant and a particular court official which is playing havoc with the usual rules and processes of the law!

GS

[stevensfo]

As a matter of curiosity are you living in what might generally be regarded as a civilised country?

V8

Ha ha, it aspires to be one, but I wonder sometime... the courts are one of the branches of state and we know how poorly the state performs at times!

I'm coming to the conclusion that there is an "arrangement" between the applicant and a particular court official which is playing havoc with the usual rules and processes of the law!

GS

I know France and Italy very well. It sounds a bit too dodgy to be France, but I know Italy better and it sounds like normal everyday life to me.

Southern Italy?


Steve

[GoSeigen]

Ha ha, it aspires to be one, but I wonder sometime... the courts are one of the branches of state and we know how poorly the state performs at times!

I'm coming to the conclusion that there is an "arrangement" between the applicant and a particular court official which is playing havoc with the usual rules and processes of the law!

GS

I know France and Italy very well. It sounds a bit too dodgy to be France, but I know Italy better and it sounds like normal everyday life to me.

Southern Italy?


Steve

LOL, I think there have been a few stories about Italy on this very forum! There are many many dodgy places around the world, not least the UK where the police are a joke and government riddled with corruption to mention just two problems...

GS

[DrFfybes]

LOL, I think there have been a few stories about Italy on this very forum! There are many many dodgy places around the world, not least the UK where the police are a joke and government riddled with corruption to mention just two problems...

How dare you. I was told long ago that the Met police was the finest Police Force money could buy.

[GoSeigen]

A notice of motion and proper application have been served now. Bizarrely the new application is for a completely different order under another act entirely. There is a new case number. So even though the magistrate denied a dismissal it seems the applicant has abandoned the previous application.

The criminal accusation also appears to have withered away, dismissed as a "mistake" -- not the court's mistake, mind you, but blamed on the police who were instructed to serve the documents!

Update:

Yesterday was the date of the hearing for the above application. The application was for the equivalent of a Harassment Order, or whatever it would be called in the UK. The cause was an allegation that I'd threatened to kill someone (not the applicant) and that as a result the applicant was afraid for his life.

I spent hours preparing for the case. I thought I'd have to submit a response and serve it on the applicant but when I put this to the Clerk of the court they said no, just bring everything to the hearing. I found that very strange but given the history of the case to date I decided to just roll with it.

When I turned up the magistrate ordered the case to be heard in camera. He excluded my family again because he said as potential witnesses their evidence would be tailored to suit what they heard if they were present. So it was just me, the magistrate, an interpreter and the Applicant.

I had expected some sort of court hearing as this was the return date on the notice to Show Cause. Instead the magistrate said he was just going to undertake an airing of the underlying issues between the two parties to determine what to do about the application. I was astonished and perplexed by this form of proceedings and said so but the magistrate was adamant. He proceeded to basically conduct a mediation on a matter unrelated to the actual application -- to resolve a grievance the Applicant had from previous dealings between us.

So it quickly became apparent that all these summonses and accusations had been used as a pretext to bring me before a magistrate to negotiate a completely different matter! I think someone suggested earlier in the thread that this might be the game -- they were right.

I was furious but mostly managed to keep my cool and cooperated anyway, because I could see some benefit in airing the differences in front of someone like a magistrate. But I was constantly aware of the fact that this magistrate was complicit in the entire deception however good his intentions (hoping to resolve a dispute) might be. The applicant of course tried to wring concessions out of me with the threat of the harassment order hanging over me. I stood my ground as I was ready to walk and take the case to court and managed not to concede to any demands.

The applicant finally agreed to abandon the application if I agreed to enter into discussion with him about how to resolve our disagreements, which I would have been willing to do anyway. So I didn't have any great direct loss from the case. But I have lost a week of my life that I will never get back and it has been quite an anxious time, especially when there was the bizarre criminal summons with a potential jail term of five years! I practically abandoned my family four four weeks getting everything straight in my mind. My wife consoles me that I have learned a lot going through the process but it was not pleasant and not what I'd have chosen.

Anyway for now it's closed so I am relieved but I'm also a bit in shock as to the state of our local court; one always hopes it's an isolated case, a screw-up, but personally I doubt it. The thing is, if everyone is advised, as I have been in this thread, to take the easy path and not be the one to campaign then how do problems ever get fixed?


GS
P.S. the applicant admitted in the course of events that the accusation was heresay and it was quite evident that he was in no way in fear of his life. As he has abandoned the case should I apply for an adverse costs order, or just let it lie? What do people think? Also the particular law in this case provides for discipline of court officials if they abuse the process. I wonder if I should invoke that? I guess not -- campaigning again!

[88V8]

A notice of motion and proper application have been served now. Bizarrely the new application is for a completely different order under another act entirely. There is a new case number. So even though the magistrate denied a dismissal it seems the applicant has abandoned the previous application.
The criminal accusation also appears to have withered away, dismissed as a "mistake" -- not the court's mistake, mind you, but blamed on the police who were instructed to serve the documents!

Update:
...should I apply for an adverse costs order, or just let it lie? ...

Interesting that the magistrate had apparently been co-opted as an informal mediator.
Still, if good comes of it....

Costs.... would it not prejudice your ongoing negotiations over the previous matter?

And is it really about the costs?

V8