QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
MR JUSTICE PITCHFORD
|THE QUEEN ON THE APPLICATION OF CROWN PROSECUTION SERVICE||(CLAIMANT)|
|PORTSMOUTH CROWN COURT||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
The DEFENDANT did not appear and was not represented
Crown Copyright ©
Thursday, 1st May 2003
"It is regrettably a regular occurrence at Portsmouth Combined Court Centre for counsel to accept briefs which clash and consequently for courts, witnesses and others to be kept waiting for counsel to complete another case in another court. This can have an adverse effect on other cases waiting to be heard. I am aware that this is regarded as a serious issue which needs to be addressed on this circuit".
"I understand prosecution counsel is in court 1, your Honour, and defence counsel is just collecting documents from the robing room".
"This was listed at 10.30 and it is now 7 minutes past 11".
"Yes, the case was listed at 10.30, was it not?"
"Your Honour, yes, I have been here. I left my papers to write on in the robing room and so I went to get it".
"So you had to rush there and get them".
"I did. I have been doing a case in another court and I had left the actual -- in the robing room".
"Yes, now Miss Clarke you defend", to which she replied "yes, I do".
"Yes. There is nobody here to prosecute the appeal. The case was listed at 10.30 and it is now 10 past 11 and so do you have an application to make?"
"I would ask for it to be dismissed".
"Yes -- what, the appeal to be dismissed?
"I am sorry, the other way round. I would ask for the appeal to be allowed".
"Yes, well, as there is no appearance [at that point, the Bench conferred]. Yes, there is no appearance by the prosecution. The appeal will be allowed with costs".
"... must in all his professional activities be courteous and act promptly conscientiously and diligently and with reasonable competence and take all reasonable and practicable steps to avoid unnecessary expense or waste of the Court's time and to ensure that professional engagements are fulfilled".
"A barrister must inform his client forthwith and subject to paragraph 610 return the instructions to the client or to another barrister acceptable to the client ..."
"... if there is an appreciable risk that he may not be able to undertake a brief or fulfil any other professional engagement which he has accepted".
"Whatever the position may be at a trial before a court of first instance, when it comes to procedure before quarter sessions sitting as an appeal court there is a clear distinction of principle between allowing an appeal against conviction after proceedings in which all the available evidence, so far as it is in the opinion of quarter sessions admissible, has been heard, and allowing it after proceedings which have been prematurely aborted, without all the available and admissible evidence having been heard, because of a ruling by the court on a preliminary point. The former is not liable to be quashed. The latter, which is this case, is liable to be quashed on the grounds stated in R v Ridgway, 1 D&R 132 and R v Clare Justices  2 IR 510".
"... the bench should have paused for an inquiry. They should have paused for an inquiry because they knew that counsel was on his way from London and that he was in any event going to be late. The inquiry which has suggested itself to me is an inquiry as to when counsel would have arrived had he been travelling by train. The answer to that inquiry would have been either 10 o'clock or 10.30 am. He had plainly not arrived by 10 o'clock. Thus 10.30 am was therefore the alternative event and in my judgment the bench should have waited until a reasonable time had elapsed from the arrival of that train. However, the bench made no inquiry. I understand, as I have said, what may have been a feeling of irritation, but I do not think that that affords any justification for the exercise of discretion that was in fact made. The matter should have been stood adjourned in toto to await the advent of counsel. On the information available to the bench it must have been reasonably imminent".
"Speaking for myself, I have great sympathy for the chairman of this bench of justices and the lay justices who were sitting with him. It appears from an affidavit by the court clerk that two cases were scheduled for hearing that day, including the case which is the subject of this application for judicial review. Both cases were listed for 10 am, both to be dealt with by way of a not guilty hearing. Counsel in the first case did not arrive until 10.40 am. The defendant in the other case did not attend until 10.50 am. I can quite well see that the justices, faced with what were in essence two contested trials during the morning, with witnesses and lawyers coming either at public expense or private expense to attend court, would have been exasperated by the late attendance of counsel instructed by the Crown Prosecution Service in the first case and I share Mann LJ's suspicion that the reason why the lay justices behaved in the way they did was that this was probably not the first occasion on which they had been treated in this way.
However, although I have great sympathy for them, I agree with Mann LJ that justice required them to wait longer and that the relief to which he has referred ought to flow".
"However, the duty of the court is to hear informations which are properly before it. The prosecution has a right to be heard and there is a public interest that, save in exceptional circumstances, it should be heard. A court's irritation at the absence of a prosecutor at the appointed time is understandable. That said, it can seldom be reasonable to exercise the power under section 15 of the Act of 1980 (as opposed to that under section 10(1)) when the justices know that a prosecutor is on the way to their court and the case is otherwise ready to be presented. In this case, according to the custody officer, the justices knew Mr Blake was on his way and in any event a further telephone call would have established the position precisely. The exercise was not reasonable in this case and was not in R v Sutton Justices ex parte DPP  2 All ER 129. We entertain the strongest suspicion that the justices were here acting so as to punish what they saw as the inefficiency of the Crown Prosecution Service".
"The decision being unreasonable in the Wednesbury sense, the question arises as to whether the order of certiorari which is sought is an available remedy".
"... it is entirely appropriate for magistrates to consider, at the magistrates did in this case, the position of the defendant and the legitimate expectation of the defendant to be dealt with promptly.
17. However, there are other interests which must also be borne in mind. There is, for example, the general public interest in prosecuting and convicting offenders. There is also the more particular interest of those people who may be personally affected by the alleged offence".
"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public".