England and Wales High Court (Administrative Court) Decisions

1. LORD JUSTICE McCOWAN: This is an application with leave of Jowitt J by the Director of Public Prosecutions for an order of certiorari to quash the decision of the Croydon Youth Court dated 28th March 1996 pursuant to section 142(2) of the Magistrates Courts Act 1980 that the proceedings against one Mark Johnson (hereinafter called “the defendant”) should be re-opened and that his case should be heard again by different Justices.

2. By section 142(2) of the said Act as amended, under the heading “Power of Magistrates’ Court to re-open cases to rectify mistakes etc”:

3. The original hearing was on 23rd October 1995. The defendant, along with 5 other youths was charged with violent disorder and assault occasioning actual bodily harm arising out of the same incident.

4. The defendant was aged 12 at the time and he was represented by counsel. He denied the charges.

5. At the initiative of the defendant’s counsel the Court heard on the voir dire an issue as to the admissibility of an interview of him by the police in which he made admissions of both charges. The objection to admissibility was that the interview was not conducted in the presence of an appropriate adult, that is to say one aged at least 18. The police officer gave evidence that the interview was conducted in the presence of the defendant’s sister, a Miss Scarlet. The officer said that he thought she was 18 from her appearance and at no time did she tell the police that she was under 18. Miss Scarlet gave evidence that she was by then 18 but had only been 17 at the time of the interview. The argument of the defendant’s counsel was that there had been a breach of the Code of Practice and hence that the interview should be excluded under the provisions of Section 78 of the Police and Criminal Evidence Act. The magistrates found that by reason of her only being 17 at the time there had been a breach of the Code but that in the exercise of their discretion the evidence of the interview should be admitted.

6. Following that ruling and on the advice of his counsel the defendant changed his plea to guilty of the charge of assault occasioning actual bodily harm and on that basis the prosecutor offered no evidence against the defendant on the charge of violent disorder.

7. There is not and never has been any suggestion that his plea of guilty was equivocal and as is apparent he gained by it the advantage of the dropping of the other charge.

8. The case against his co-defendants continued that day and at the end of the prosecution case the magistrates upheld a defence submissions that the prosecution had failed to adduce evidence to rebut the presumption of doli incapax and dismissed the case against the five co-defendants, all of about the same age as the defendant. On 17th January 1996 he was conditionally discharged for 12 months.

9. Since the co-acquittal of his co-defendants, the defendant has sought to reverse his plea of guilty, no doubt because he believes that if he had not so pleaded he would have got off for the same reason that his co-defendants did. He could not appeal to the Crown Court because he had pleaded guilty unequivocally. At first the intention of his legal advisers was that he should appeal by way of case stated, the point of law, we were told, being that the magistrates should not have held the evidence of his interview admissible because his sister was under 18 at the time. Instead, however, it was decided to pursue an application under section 142(2).

10. Miss Markus for the defendant told us that she has in the last few days spoken to counsel, now in Australia, who appeared for the defendant at the trial and she undertook to have him swear an affidavit as to what he told her. This includes a claim that on the voir dire he requested the magistrates to listen to the tape of the interview but they declined to do so. This is in contradiction of the affidavit of Edward Newell Rook who was Chairman of the Youth Panel on the day in question who swore on 23rd July 1996: “I recall that we were advised by the advocates that it was not essential for us to listen to the tape recording of the interview, but it was available for our use”. I cannot prefer the recollection of counsel to that of Mr Rook first because he recorded his recollection so much closer to the events in question, and secondly because it is his evidence on which Miss Markus fundamentally relies in opposition to the present application.

11. In paragraph 5 of his affidavit Mr Rook says that the basis of their decision to re-open the case was:

12. In this belief Mr Rook was wholly mistaken. It illustrates the dangers of speculation. It is plain from the notes of the Clerk to the Justices’ of the evidence at the trial that the officer did not suggest either that Miss Scarlet told him she was 18 or that during the tape recording he told her of her responsibilities. His evidence was that he so advised her before the interview and hence before the tape recording began. Hence the tape of which we have a transcript is in fact of no help in resolving the points which exercised Mr Rook.

13. In my judgment the purpose of section 142(2) is accurately described in the heading as a “Power to rectify mistakes”. It is generally and correctly regarded as a slip rule. Miss Markus places great reliance on the fact that those words in the heading are followed by “etc.”. But in my judgment that cannot extend the power given beyond a situation akin to mistake. There was no mistake in the present case or anything like it. The magistrates were in fact told at the trial, according to their chairman, that it was not essential for them to listen to the tape. They did rule that the interview was admissible and the defendant, advised by counsel, did then unequivocally plead guilty.

14. The defendant could not appeal to the Crown Court because he had pleaded guilty. It would be wholly wrong in my judgment for it to be possible to employ S.142(2) as a method of a defendant obtaining a re-hearing as a substitute for an appeal to the Crown Court which he cannot pursue because he has unequivocally pleaded guilty.

15. Miss Markus seeks to get round that by stressing the words in the section “where it appears to the Court to be in the interests of justice to do so”. If the only interest of justice were to enable the defendant to have another bite of the cherry. I would see the force of what she says, but the interests of justice also include the interests of the Courts and the public that people who have pleaded guilty with the advice of counsel should continue to be regarded as guilty and that there should be certainty and an end to litigation.

16. I pay tribute to Miss Markus’s industry in preparing the defendant’s case and the tenacity with which she advanced it, but she has failed to persuade me. In my judgment the Justices were wrong in law and on the facts in believing they had jurisdiction to make the order. I believe they should never have made it and I would quash it.

17. LORD JUSTICE McCOWAN: For the reasons given in the judgments which have been handed down, this application is granted.

18. MR McGUINNESS: My Lord, I have no application to make in respect of costs.

19. MISS MARKUS: I have no application, my Lord.

20. LORD JUSTICE McCOWAN: Very well, thank you.