COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR JOHN HOWELL QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE HOOPER
LORD JUSTICE MUNBY
| THE QUEEN ON THE APPLICATION OF HARRISON
|- and -
|BIRMINGHAM MAGISTRATE'S COURT
CHIEF CONSTABLE OF WEST MIDLANDS POLICE
MR COLIN BARAN (instructed by the Force Solicitor, West Midlands Police Authority, Legal Services Department) for the Second Respondent.
The First Respondent did not appear.
Hearing date: 15th March 2011
Crown Copyright ©
Lord Justice Hooper :
DC Davis refers to the £5,000 cash in the laundry basket which Harrison states she received from Saga insurance as a result of a claim which was paid to her by cheque and she has taken out in varying amounts.
There appears to be sound evidence to the effect that she did indeed receive such a sum for such reason.
On the 2nd February 2008 DC Laming of Wednesfield Police Station was informed orally over the telephone that I was no longer residing at 32 Kent Road. I provided him with my new address. In addition, on 2nd February 2008, I obtained a sick note from my GP bearing my new address and this was put in the post to DC Laming on the 2nd February 2008. This note is exhibited at document NH6B. In addition I refer to my supplementary witness statement at document NH27. I also sent an invoice from the removal and storage company which I had contracted to DC Laming. This is exhibited at document NH8.
(4) The justices' clerk shall set a date for a directions hearing, which, unless he directs otherwise, shall not be earlier than seven days from the date on which it is fixed, and the designated officer shall notify that date to the applicant [i.e. the police officer who made the application] and to every person to whom a copy of the application is required to be sent under paragraph (3). (Emphasis added)
(5) At the directions hearing, the court may give directions relating to the management of the proceedings, including directions as to the date for the hearing of the application.
If neither the person from whom the cash was seized, nor any other person who is affected by the detention of the cash, seeks to contest the application, the court may decide the application at the directions hearing.
(1) At the hearing of an application under Chapter 3 of Part 5 of the Act, any person to whom notice of the application has been given may attend and be heard on the question of whether the application should be granted, but the fact that any such person does not attend shall not prevent the court from hearing the application.
(2) Subject to the foregoing provisions of these Rules, proceedings on such an application shall be regulated in the same manner as proceedings on a complaint, and accordingly for the purposes of these Rules, the application shall be deemed to be a complaint, the applicant a complainant, the respondents to be defendants and any notice given by the designated officer under rules 5(3), 6(4), 7(4), 8(4) or 10(4) to be a summons: but nothing in this rule shall be construed as enabling a warrant of arrest to be issued for failure to appear in answer to any such notice.
(3) At the hearing of an application under Chapter 3 of Part 5 of the Act, the court shall require the matters contained in the application to be sworn by the applicant under oath, may require the applicant to answer any questions under oath and may require any response from the respondent to the application to be made under oath.
(4) The court shall record or cause to be recorded the substance of any statements made under oath which are not already recorded in the written application.
Where a complaint relating to a person is made to a justice of the peace, the justice of the peace may issue a summons to the person requiring him to appear before a magistrates' court to answer to the complaint.
(1) Where at the time and place appointed for the hearing or adjourned hearing of a complaint the complainant appears but the defendant does not, the court may, subject to subsection (3) below, proceed in his absence.
(2) Where the court, instead of proceeding in the absence of the defendant, adjourns, or further adjourns, the hearing, the court may, if the complaint has been substantiated on oath, and subject to the following provisions of this section, issue a warrant for his arrest.
The court shall not begin to hear the complaint in the absence of the defendant ... unless either it is proved to the satisfaction of the court, on oath or in such other manner as may be prescribed, that the summons [the notice sent by the designated officer] was served on him within what appears to the court to be a reasonable time before the hearing or adjourned hearing or ... .
Any notification or document required to be given or sent to any person under these Rules may be given by post or by facsimile to his last known address, or to any other address given by that person for the purpose of service of documents under these Rules.
... the note taken by the Legal Advisor records that DC Reynolds informed the court that as a result of the amended document being sent the claimant would have actually received two sets of correspondence.
The District Judge noted that in addition to the letter sent by the police a further letter had been sent to the claimant by the court. This letter stated that an application for the forfeiture of cash would be held before the Birmingham Magistrates Court on the 29th April 2008. It was sent out to the address of the claimant shown on the Form G (32 Kent Road) and was sent out on the 17th April 2008.
The District Judge was also aware that the address of 32 Kent Road was the address from which the cash was said to have been seized. He was therefore satisfied as to the service of documents. The District Judge then proceeded to hear the application under Rule 7 of the Magistrates' Courts (Detention and Forfeiture of Cash) Rules 2002.
DC Reynolds ... relied upon written information in support of the police application which he confirmed and provided to the court, and in particular indicated that:
The claimant was believed to be involved in fraud by false representations. As a consequence of this, officers attended the claimant's home address and she was later arrested. A sum of £5,000 was found in a laundry basket.
The claimant's explanation at the time was that the money belonged to a friend, who the claimant refused to name. The claimant had later advised police that the money was from a previous insurance claim and she felt that the laundry basket was the best place for it.
The claimant had previous convictions for offences of shop theft as well as a conviction for attempting to obtain a pecuniary advantage.
The claimant's partner was a serving prisoner convicted and sentenced for drugs offences in 2007. [The appellant disputes that this is accurate]
The claimant had been asked to provide evidence or proof regarding the source of the money. There had been no reply to this request from the claimant.
Having considered the evidence presented to the court, the District Judge made a forfeiture order for the sum of £5,000 including any accrued interest, having been satisfied that the money was recoverable property or intended for an unlawful purpose. In reaching this decision, he would have taken into account:
The amount of money seized and the place where it was found;
The claimant's failure, either at the hearing or before, to provide a consistent and satisfactory explanation for the money source of the money, despite a specific request for her to do so;
Both the claimant and her partner have been involved in previous criminal activity.
July 2008. I returned to Kent Road. I found a letter dated 21st April 2008 notifying me of a directions hearing listed for the 29th April 2008 at Birmingham Magistrates Court. I telephoned the court; I was told that the matter was dealt with in my absence, I asked what the outcome was; I was told that information could not be given and I should direct all my enquiries to the Police.
July 2008. I contacted (by phone) DC Laming relative the court hearing (29-04-09) at Birmingham Magistrates Court. I was told that the matter had been adjourned due to a delay in the CPS, who had yet to make a decision as to whether or not to charge me and what (if any) actions would be taken against me.
(7) An order for the forfeiture of detained cash under section 298(2) of the Act . . . and a copy of the order shall be given by the designated officer to every person to whom notice of an order made under section 295(2) of the Act in respect of the detained cash has been given and to any other person known to be affected by the order.
On the 2nd October 2008, I attended Wednesfield Police Station to surrender to bail on the understanding that there was no further action being taken against me. At the police station I was informed that I would not be charged with any criminal offence. I spoke to DC Laming who returned some documents to me together with my purse. I asked what had happened to all of the personal property that had been seized from my home. I was informed that his had been given to an anonymous third party. I asked what had happened to my £5,000 in cash. I was informed that I had "forfeited" this money.
An appeal ... must be made before the end of the period of 30 days starting with the day on which the court makes the order or decision.
The Claimant contends that she informed DC Lanning that she had changed her address. The acknowledgment of service in this case denies that the West Midlands police knew of any such change of address. Plainly I cannot resolve on this application any issue as to whether DC Lanning was or was not told of the change of address, or was or was not supplied with those documents. The issue, however, is whether the applicant for the forfeiture order DC Reynolds was aware of the change in address. On that there is no evidence.
On behalf of the Claimant, Mr Dixon says that the difference between DC Reynolds knowing and DC Lanning knowing is a technicality. One should regard the application as in effect being made by the Chief Constable or by the West Midlands Police Force.
The application in fact has to be made by a constable. It could have been made by the Chief Constable but it was not in this case. As the forfeiture order records, it was made on the application of DC Reynolds. It may be the case that DC Reynolds was not told. He appears to have given evidence on oath to the Magistrates that the documents had been served on the last known address. There is nothing to suggest that in giving such evidence, he was not telling what he believed to be the truth to the Magistrates' Court. In those circumstances, albeit with some reluctance, it seems me that it is not arguable that the notice of the application was not served in accordance with the rules.
37. In the first place, and as ex p Fox-Taylor and ex p A show, the jurisdiction is not confined to, although it is no doubt most frequently exemplified by, criminal cases where the judicial process has been distorted by some failure on the part of the prosecution. So the fact that in the present case the Justices were not exercising their criminal jurisdiction is not, of itself, any reason why a quashing order should not be made.
38. Secondly, it is now clearly established that a conviction or other judicial finding by an inferior tribunal is amenable to quashing by certiorari even if it was obtained without unfairness by the tribunal and without malpractice by the prosecutor or other complainant: see the formulation of the issue by Watkins LJ in ex p Scally at p 547H. In an appropriate case, as Watkins LJ went on to demonstrate by reference to the authorities I have mentioned, the jurisdiction is exercisable even if the tribunal has behaved with complete propriety which is, after all, the characteristic feature of all these cases and, more to the point, even if there has been no fraud, collusion, perjury, bad faith or dishonesty on the part of the prosecutor or complainant.
39. Thirdly, certiorari can in principle go if there has been an irregularity producing an unjust or potentially unjust result. This is best exemplified by ex p Scally and ex p A, two of the cases to which Mr Giffin very properly took me.
40. In ex p Scally at p 549G Watkins LJ described what had gone wrong: "I would regard the mischief here as arising from a regrettable failure, in the police stores or other place under the control of the police, to take the simple precaution of ascertaining whether, having regard to the use for which the swabs were intended, [the] swabs were suitable It was as simple and unfortunate as that it is not suggested that dishonesty entered this affair at any stage." Quashing the conviction he said at p 556C: "What happened here was that, there being no dishonesty, the prosecutor (a combination of police and CPS) corrupted the process leading to conviction in a manner which was unfair, for it gave the defendants no proper opportunity to decide whether to plead guilty or not guilty; indeed it wrongly denied them a complete defence to the charge."
41. Previously, at p 554H, Watkins LJ had held that "irregularity" in this context was not confined to fraud. "Grounds other than fraud or collusion can obviously, providing they are analogous to such conduct, be regarded as irregularities at the trial as ex p Hawthorn, ex p Khanna and ex p Goonatilleke show." Hutchison J said much the same thing at p 557D: "I do not consider that we are improperly extending or distorting that special category of cases, analogous to fraud, and exemplified by the decision in Hawthorn's case  QB 283, where relief is available even in the absence of error or misconduct by the tribunal. It is clear that it can include cases of unfairness in the conduct of the proceedings because of a failure on the part of the prosecutor, even where there has not in fact been fraud or dishonesty. It seems to me that the present cases are readily to be accommodated within that special category".
42. In ex p A Lord Slynn of Hadley referred at p 343G to what had happened: "It is not suggested that the officer gave her inaccurate evidence deliberately, let alone fraudulently. Yet it is plain that in a matter of crucial importance, the board was led to proceed on evidence which was wrong and they did not have the true facts." Quashing the decision Lord Slynn continued at p 345C: "I decide the matter on the basis that what happened in these proceedings was a breach of the rules of natural justice and constituted unfairness. It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness." He concluded at p 347A: "I consider therefore that, on the special facts of this case and in the light of the importance of the role of the police in co-operating with the board in the obtaining of evidence, there was unfairness in the failure to put the doctor's evidence before the board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done." Agreeing, Lord Nolan referred at p 348B to what he called "the appearance of unfairness". Lord Hobhouse of Woodborough said at p 348D: "There was an inadequate observance of the principles of natural justice."
43. As Mr Giffin correctly pointed out, Lord Nolan recognised at p 348B that the House was taking an "exceptional course" in ex p A. Properly Mr Giffin also took me to the passages in ex p Bates where Buxton J said that "the standard that this court has laid down for considering such applications is an extremely stringent one" and, referring to "this very exceptional jurisdiction", said that "one should look for cases that can properly be described as being analogous to fraud, or where there has been a serious error on the part of the prosecutor."
44. I do not dissent from any of that. But such observations have to be put in a context which was, as it seems to me, best expressed by Watkins LJ in ex p Scally. Having acknowledged at p 555C "how necessary it is to recognise clearly the principle we have to observe and how careful this court must be in its application in any particular case", he continued with these important words: "At the same time the overriding principle, in my view, must surely be that justice should be done and if it be demonstrated that another principle rigidly applied is or would seem to be getting in the way of doing justice, the bounds of that principle require to be very critically examined in a modern light and without the so often deployed floodgates argument being given undue prominence. That is not to suggest that the principle is lightly to be thrust aside in order to cure a glaring injustice, however great the temptation may be. It is to assert that instances of the proper application of the principle are various and are more likely than not to increase in that respect." I respectfully agree.
45. And at the end of the day there is the simple statement of principle by Lord Slynn: "It does not seem to me to be necessary to find that anyone was at fault It is sufficient if objectively there is unfairness."
I found a letter dated 21st April 2008 notifying me of a directions hearing listed for the 29th April 2008 at Birmingham Magistrates Court.
Lord Justice Munby :
"Mr Marsh was denied a fair trial. Justice was not done. It is the historic and vital function of [the Administrative] court when exercising its supervisory jurisdiction over Justices to ensure, if not that justice is done, at the very least that demonstrated injustice is not allowed to continue uncorrected."
"It does not seem to me to be necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness."
Lord Justice Pill :
Note 1 At the time that the 2002 Rules were made, section 144 provided that the Lord Chancellor was to make the rules, following consultation. The power to make the rules was transferred to the Lord Chief Justice by amendments made by the Constitutional Reform Act 2005, Schedule 4(1) paragraph 102(3)(a), which came into force in April 2006. [Back] Note 2 The Courts Act 2003 s. 37 (1) provides:
Any reference in an enactment to the designated officer, in relation to a magistrates court, justice of the peace or local justice area, is to a person who is
(a) appointed by the Lord Chancellor under section 2 (1) or provided under a contract made by virtue of section 2 (4) and
(b) designated by the Lord Chancellor in relation to that court, justice of the peace or area.
Under section 2 (1) The Lord Chancellor may appoint such officers and other staff as appear to him appropriate for the purpose of discharging his general duty in relation to the courts.
Note 1 At the time that the 2002 Rules were made, section 144 provided that the Lord Chancellor was to make the rules, following consultation. The power to make the rules was transferred to the Lord Chief Justice by amendments made by the Constitutional Reform Act 2005, Schedule 4(1) paragraph 102(3)(a), which came into force in April 2006. [Back]
Note 2 The Courts Act 2003 s. 37 (1) provides: Any reference in an enactment to the designated officer, in relation to a magistrates court, justice of the peace or local justice area, is to a person who is (a) appointed by the Lord Chancellor under section 2 (1) or provided under a contract made by virtue of section 2 (4) and (b) designated by the Lord Chancellor in relation to that court, justice of the peace or area. Under section 2 (1) The Lord Chancellor may appoint such officers and other staff as appear to him appropriate for the purpose of discharging his general duty in relation to the courts. [Back]