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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Thompson, R (on the application of) v Whitehaven Justices [1998] EWHC Admin 940 (09 October 1998)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/1998/940.html
Cite as: [1998] EWHC Admin 940
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QUEEN v. WHITEHAVEN JUSTICES Ex parte ALAN CHARLES THOMPSON [1998] EWHC Admin 940 (9th October, 1998)
1. MR
JUSTICE SULLIVAN: This is an application for certiorari to quash a decision of
the Whitehaven Magistrates' Court on 28 January 1998 to commit the applicant
for trial to the Carlisle Crown Court on two charges: the first, conspiring to
supply heroin between December 1996 and July 1997; and the second, supplying
heroin to a Richard Brassington.
2.
The applicant was originally charged with certain other offences, but
at old-style committal proceedings the prosecution indicated that it wished to
pursue a single count of conspiracy to supply heroin over the period that I
have mentioned against the applicant and four co-defendants.
3.
At the conclusion of the prosecution case Mr Latif, who appeared for
the applicant below and has appeared on his behalf before us, made a submission
of no case to answer. The magistrate rejected that submission and committed
the applicant for trial not merely on the conspiracy count advanced by the
prosecution, but also on the second count of supplying Brassington, which she
considered she was entitled to do under section 6(1) of the Magistrates' Courts
Act 1980. In these proceedings before us Mr Latif originally
challenged the magistrate's decision on two grounds: firstly, her decision to
reject his submission of no case to answer was
Wednesbury
perverse; and secondly, she should not have committed the applicant on the
second count without giving the applicant an opportunity to make
representations as to the appropriateness of such a course.
4.
The second point no longer arises because Mr Christie on behalf of the
prosecution has told us that the prosecution will be proceeding on the
conspiracy count alone, notwithstanding the magistrate's decision in respect of
the supply count.
5.
There is an affidavit from the magistrate which sets out the evidence
on which she concluded that there was a case to answer on the conspiracy count.
Mr Latif has also summarised the evidence in the documentation before the
court, and before us in his submissions has sought to analyse the evidence and
to point out its deficiencies. Speaking for myself, I find it unnecessary to
refer to either the magistrate's or Mr Latif's analysis in any detail because I
am satisfied that this application for judicial review on the basis of
insufficiency of evidence is misconceived.
6.
Mr Latif has referred to two House of Lords authorities:
Neill
v North Antrim Magistrates' Court
(1993) 97 121, and
R
v Bedwellty Justices, Ex parte Williams
[1997] AC 225. Those cases establish that in principle a decision to commit a
defendant for trial is susceptible to challenge by way of judicial review. But
it is worthwhile reminding oneself of the facts in
Neill.
In that case the committal was challenged on two grounds. The first was that
the magistrate had taken into consideration inadmissible evidence. The second
was that there was an insufficiency of evidence on which to commit. The House
of Lords allowed the appeal on the first ground, but made it clear that it
would not have allowed the appeal had it been confined to the second ground,
insufficiency of evidence. At page 132 Lord Mustill, with whom the other
members of the House agreed, said this in his speech:
".... even if quashing for insufficiency of evidence is admissible in theory it should occur only in the very clearest of cases ...."
"For the moment I am unwilling to go further than to doubt whether, in a case where it is quite obvious that the committal materials disclose no offence, the court is powerless to protect the defendant from the stress, labour and expense, not to speak of the possible loss of liberty, entailed by having to wait until the end of the prosecution's case at the trial before the obvious conclusion is drawn."
8. Thus
although there is a discretion, that discretion should be exercised only in the
very clearest of cases where it is (to quote Lord Mustill) "quite obvious" that
the evidence is insufficient.
"My Lord, in my respectful opinion it would be both illogical and unsatisfactory to hold that the law of judicial review should distinguish in principle between a committal based solely on inadmissible evidence and a committal based solely on evidence and a committal based solely on evidence not reasonably capable of supporting it. In each case there is in truth no evidence to support the committal and the committal is therefore open to quashing on judicial review. Nonetheless there is a practical distinction. If justices have been of the opinion on admissible evidence that there is sufficient to put the accused on trial, I suggest that normally on a judicial review application a court will rightly be slow to interfere at that stage. The question will more appropriately be dealt with on a no case submission at the close of the prosecution evidence, when the worth of that evidence can be better assessed by a judge who has heard it, or even on a pre-trial application grounded on abuse of process. In practice successful judicial review proceedings are likely to be rare in both classes of case, and especially rare in the second class."
9.
The present case falls within the second class of case. Looking
briefly at the facts, it emerges from the magistrate's affidavit that the
old-style committal proceedings were spread over no less than five days. Five
witnesses, including Brassington, gave oral evidence and were cross-examined.
Numerous witness statements were read. In her affidavit the magistrate makes
it plain that she carried out a careful analysis and evaluation of the evidence
that was led before her. Mr Latif commented on each individual item of
evidence. He submitted that in itself each item did not support the existence
of a conspiracy. It is not surprising that, looked at in isolation, each item
did not support the count of conspiracy. But the magistrate was not looking at
each item in isolation; she was looking at the cumulative effect of all the
pieces of evidence that she identified in her affidavit. It is conceded that
she was right to look at the evidence on that cumulative basis and to see
whether a number of perhaps small indications when looked at in their own
right, were sufficient in aggregate to mean that the applicant had a case to
answer.
10.
She having done that, having heard the witnesses, it is in practical
terms quite impossible for this court, not having heard the evidence, to say
that her decision was
Wednesbury
perverse. It is plain from the two authorities which I have cited that it is
an inappropriate use of judicial review to challenge committal proceedings on
the basis of insufficiency of evidence, save in the very clearest of cases.
This is not such a case and for my part I would dismiss the application.
MR
CHRISTIE: My Lord, it follows that the respondent has been put to some expense
in these proceedings. On their behalf I seek an order for costs?
LORD
JUSTICE KENNEDY: That must follow inevitably, must it not, Mr Latif -- not in
relation to the proceedings as a whole but in relation to these questions?
MR
LATIF: My Lord, the applicant is legally aided.
LORD
JUSTICE KENNEDY: It is the question as to whether they are enforced. Do you
want an order not to be enforced?
MR
LATIF: May I have legal aid taxation?
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