England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST

		Royal Courts of Justice Strand London WC2
		15th November 1996

LORD JUSTICE STAUGHTON: Darren Santos appeared at the Liverpool Magistrates Court on 27th November 1995 with three others, charged with Aggravated Vehicle Taking, contrary to section 12 of the Theft Act 1968. He was remanded on bail. According to the court log that was until 8th January 1996. His solicitors, R M Broudie and Co recorded the date as 9th January.

We have not been asked to resolve the question of whose mistake it was. Miss Montgomery, who appears for Santos, is prepared to argue the case on the basis that it was the solicitor's mistake and not that of the magistrates or their clerk.

During the ensuing month and a bit, the solicitors wrote three letters to Santos dated 28th November, 22nd December and 3rd January. In each they said that he was to appear on the 9th January, the date which they had recorded. Furthermore, there was a conference when Santos appeared at their offices on 4th January. He was again told that he should appear on 9th January. On 8th January, the date which the court regarded as the occasion when he should surrender, he did not appear and neither did the three other defendants. On this occasion the magistrate was Mr Paul Firth, a stipendiary. Miss Clarke, an associate solicitor from the firm of R M Broudie and Co, attended. She explained that the date had been noted as 9th January.

Now, the practice at that time at the Liverpool Magistrates Court was that if there were to be proceedings under the Bail Act the process was started immediately on the failure of the defendant to attend and surrender to his bail. The practice has since been changed, and the commencement of process now is deferred until the defendant is arrested and brought before the court or otherwise appears. On the 8th January Mr Firth, in accordance with the practice as it then existed, issued a warrant for the arrest of Santos and directed that informations be laid against him and the others for an offence under section 6(1) Of the Bail Act 1976. He did that of his own motion without any advice or encouragement from the prosecutor. What followed thereafter is stated in the grounds of this application for judicial review.

On 9th January the applicant appeared at the magistrate's court. The magistrate withdrew the warrant of arrest but declined to withdraw the proceedings for an offence under section 6 of the Bail Act. A mistake as to the date of a remand, whoever it was made by, could not in his view constitute reasonable cause for a failure to surrender.

On 10th January and 29th January, R M Broudie and Co wrote substantial reasoned letters to the Liverpool Magistrates' Court, and invited the court to reconsider whether the proceedings in respect of the bail offence should continue. The magistrate caused replies to be sent on an earlier date and on 7th February stating that his decision was as stated in court on 9th January. Following a request for an oral hearing in open court on 20th January 1996 the magistrate refused to hear oral argument on whether proceedings against the applicant under section 6(1) of the Bail Act should be continued.

The application for judicial review questions two decisions of the magistrate. The first is his decision on 7th February to continue proceedings brought against the applicant under the Bail Act. That was the second of the three letters sent on the magistrate's instructions. Secondly, it is sought to review the refusal by the magistrate on 20th February to hear further arguments on whether the proceedings under section 6(1) of the Bail Act should be continued.

Miss Montgomery has taken three points. First, she referred us to the practice direction of Lane CJ, which is recorded in Archbold at paragraph 3-31. Paragraph 2 of the direction says:

"It is neither necessary nor desirable to lay an information in order to commence proceedings for the failure to surrender. Having regard to the nature of the offence which is tantamount to the defiance of a court order, it is more appropriate that the court itself should initiate the proceedings by its own motion, following an express invitation by the prosecutor. The court will only be invited so to move if, having considered all the circumstances, the prosecutor considers proceedings are appropriate. Where a court complies with such an invitation, the prosecutor will naturally conduct the proceedings and, where the matter is contested, call the evidence."

Now, as we have said, there is no evidence that the prosecutor took any part in the decision to take proceedings against Santos and the other three. That is not a fatal flaw, in my judgment. The practice direction recommends that the prosecutor should be involved and, in the ordinary way, that should certainly be the case. It was perhaps the failure to take that course which has resulted in what happened in this case. But I would say that as a matter of law it is not an essential requirement. The Court is entitled to initiate proceedings by its own motion, and is not required by law to consult the prosecutor before taking that course.

Then it is said that the magistrate's decision was flawed because he failed to review his decision on the following day, 9th January or thereafter, when he no doubt was told about the mistake being the solicitor's mistake. He said in terms that a mistake by a solicitor was not a reasonable excuse. After receiving the two reasoned letters from the defendant's solicitors he stood by his original decision. There is a complaint that he did not, in response to the third letter, hold an oral hearing. I do not see why he was obliged to do that. Everything had been explained to him that could be said and there was no requirement that he should have a further hearing in anticipation of the eventual charge under the Bail Act being heard.

But the third point taken by Miss Montgomery is, in my view, the one of most substance. She says that the magistrate's decision was irrational and based on a mistake of law. In so far as the magistrate ruled that a mistake by a solicitor could never be a reasonable excuse for failure to attend, I think that he was wrong. But equally, if Miss Montgomery were to argue, as in fact she does not, that the mistake by a solicitor would always be a reasonable excuse for failure to attend, then she would be wrong too. Whether the solicitor's mistake was or was not a reasonable excuse is a question to be determined in every case in the light of all the circumstances.

Ought that question to have been decided at a preliminary stage, on the 8th or 9th January by an inquiry and if necessary listening to evidence from Mr Santos as to why he had not attended? Or was the stipendiary magistrate right to initiate the proceedings and leave it to the trial to determine whether there was a reasonable excuse? It does seem to me that the magistrate was a little hasty in this case. Maybe there have been rather too many occasions when proceedings at the Liverpool Magistrate's Court have been aborted for this sort of reason, we do not know. Under the new procedure the decision would have been deferred until when the defendant was produced in court.

In my judgment it cannot be said to be an error in law or irrational in such a case, not to review the situation as soon as the defendant's excuse is deployed, but rather to leave it for him to prove it at the trial. It may be that it would have been a better course to have considered it then and there when it was first deployed rather than leave it until the trial. It may be that magistrates would be wiser to do that in plain cases. But I would not say that this was an error which ought to lead us, in the exercise of our discretion, to grant the remedies of judicial review. That is perhaps particularly the case because there were three other defendants involved, none of whom had turned up, and if the proceedings for breach of bail against Santos had been terminated, that might have had an effect on the case of the other three. So in my judgment this application fails.

MR JUSTICE TUCKER: This is an application for judicial review pursuant to leave which has been granted. It is to be noted that there were four defendants in this case, none of whom appeared on the date fixed by the court for their trial. Curiously enough it seems that their solicitors were present on that date. Perhaps that was fortuitous. The solicitor who appeared for one of the defendants had no explanation for the absence of his client. Miss Clarke who represented the three remaining defendants, including this applicant, gave a possible reason for their absence. Namely, that each had been written to by her firm informing them that they had been remanded until the following day. This applicant did appear the next day, but this time was represented by Mr Broudie of the same firm. The other three, including Miss Clarke's and Mr Broudie's other two clients, did not appear. Presumably there was no explanation for their continued absence from court.

In retrospect I agree it might have been better had the learned stipendiary magistrate waited until the following day in order to see whether three of the defendants attended before instituting proceedings under the Bail Act 1976. It is however to be born in mind that on 8th January he was given no explanation for the non-appearance of one defendant, and that on 9th of January despite the explanation that had been offered by Miss Clarke on the previous day, two of the remaining defendants still failed to attend. There was a prima facie case against this applicant, indeed against all of these defendants, in that they had all failed to surrender to custody on the date appointed by the court. Section 6(3) of the Act provides:

"It shall be for the accused to prove that he had reasonable cause for his failure to surrender to custody."

That of course refers to proof on the balance of probabilities.

In my opinion, in the circumstances of this case, albeit that it would have been better to have waited 24 hours, it was open to the learned stipendiary magistrate to take the course he did. Having taken that course it was not inappropriate for him to refuse to withdraw the information as far as this applicant was concerned.

On an application such as this for judicial review it must be remembered that we are not sitting as a Court of Appeal from the magistrate's decision. We are sitting as a court of review. For my part I would, in my discretion, decline to review this decision or to grant the relief sought in the application.

MISS MONTGOMERY: My Lords, I am legally aided. Can I ask for legal aid taxation to be performed at the Liverpool District Registry, the solicitors being Liverpool based.

LORD JUSTICE STAUGHTON: I do not know what difference that makes.

MISS MONTGOMERY: I am not sure whether I need a formal order or not. In case I do, I ask for it.

LORD JUSTICE STAUGHTON: Very well.

MISS MONTGOMERY: Can I mention one other matter: the title of proceedings has proceeded under the title Liverpool City Justices, it should be the Liverpool Stipendiary Magistrate.

MR JUSTICE TUCKER: Your form 86(a), what title does that bear?

MISS MONTGOMERY: Form 86(a), I would say the Magistrate, but in the Crown office it has certainly been recorded as Justices. I ought to correct it because it is plainly in error.

LORD JUSTICE STAUGHTON: Yes, very well.

MISS MONTGOMERY: Thank you very much.