England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		19th May 2003

MR JUSTICE KEITH:

Introduction

1. This is a claim for judicial review of a refusal by magistrates to state a case for the opinion of the High Court. The unusual twist in the story is that their clerk is said to have edited the application for a case to be stated, so that the magistrates considered only one of the questions of law on which the opinion of the High Court was sought. Unless otherwise stated, all references in this judgment to sections of an Act are to sections of the Magistrates' Courts Act 1980, and all dates in this judgment are dates in 2002.

The facts

2. The claimant faced two charges of common assault. His alleged victim was his ex-girlfriend. The trial took place before a bench of lay justices, over two days, on 8th February and 8th March at South Western Magistrates' Court. On 8th March the magistrates convicted the claimant on both charges, and remanded him on conditional bail for a pre-sentence report. On 10th April he was sentenced to two months' imprisonment on each charge, to be served concurrently with each other.
3. The claimant wished to appeal against his conviction. In view of what had happened at his trial, he was advised to appeal by way of case stated to the High Court, rather than to the Crown Court. An appeal by way of case stated is commenced by an application being made under section 111(1) to the magistrates to state a case for the opinion of the High Court. The effect of making such an application is that a defendant's right of appeal to the Crown Court ceases (see section 111(4)).
4. What purported to be an application of the kind to which section 111(1) related was sent to the Court by the claimant's solicitors on 11th April. It arrived on 12th April. Form N161 of the Civil Procedure Forms, ie the Appellant's Notice used in conventional appeals in civil cases, had been used. It was not the appropriate form for the present case. The document which invokes the High Court's jurisdiction in an appeal by way of case stated is the Case itself, ie the document in which the magistrates state the questions on which the opinion of the High Court is sought. The only document which the defendant submits is the application for a case to be stated, and that is submitted to the magistrates, though if the magistrates decide to state a case, the defendant's solicitor may have an input in the drafting of the Case (see rule 77(2) of the Magistrates' Courts Rules 1981)("the Rules").
5. The contents of the form which purported to be an application of the kind to which section 111 related were also defective. Rule 76(1) of the Rules required the application to "identify the question or questions of law or jurisdiction on which the opinion of the High Court is sought". The documents submitted by the claimant's solicitors did not do that. None of the points on which the opinion of the High Court was subsequently sought were referred to in it, let alone raised in the form of questions. It contained no more than a general criticism of the magistrates for accepting as clear and credible the evidence of the complainant.
6. The deficiencies in the form were brought to the attention of the claimant's counsel by Mr John Mulhern, the Justices' Clerk, on 12th April when counsel had gone to the Court in order to apply for bail for the claimant. While not accepting that there were deficiencies in the form, counsel appreciated that time was important, because a magistrates' court's power to grant bail, in a case in which the defendant proposes to appeal by way of case stated, is triggered by the submission of a proper application for a case to be stated (see section 113(1)). Accordingly, counsel drafted a three page document which purported to meet Mr Mulhern's concerns. They did not, because although the new documents identified the points which were being raised, the points were not put in the form of questions, as required by rule 76(1) of the Rules. Counsel then drafted a further document which again purported to meet Mr Mulhern's concerns.
7. The document was two pages long. It contained questions in eight numbered paragraphs, although some of those paragraphs contained more than one question. It is accepted by Mr Mulhern that he brought only one of those questions to the attention of the magistrates for them to consider. That was question 4, and it read as follows:

"The Clerk to the Justices gave advice to the clerk to the court and to the Justices themselves concerning 3 points. The Applicant submits that he was wrong to do this since there was a clerk who was controlling the conduct of the case and that the clerk to the Justices had not been present for the whole of the evidence. Was the Clerk to the Justices wrong in law to intervene in these circumstances."

8. There is a difference of recollection about how it came about that only question 4 was put before the magistrates. Counsel's recollection is that after spending some time considering the second draft, Mr Mulhern told him that none of the questions identified a question of law upon which the magistrates could state a case, with the possible exception of question 4, and that he would put that question alone to the magistrates. Counsel objected on the basis that it was not for Mr Mulhern to act as a filter for the magistrates, and that he expected Mr Mulhern to place all the questions before the magistrates.
9. Mr Mulhern says that on that day his only concern was to ensure that there was at least one question which he could properly place before the magistrates, and which would therefore trigger the claimant's right to apply for bail. Question 4 was sufficient for that purpose, which was why he only put question 4 before them. That is supported by a letter which he wrote on 15th April to the claimant's solicitors in which he said:

"I enclose for your information the draft served on me by counsel. From this draft I accept[ed] Item 4 as being a point of law for which the justices would be asked to state a case. The court was then enabled to exercise its jurisdiction to hear an application for bail pending the outcome of the appeal."

10. It is said by Miss Karen Steyn for the justices that in these circumstances Mr Mulhern did not consider, either then or later, whether any of the other questions raised points of law which could properly be referred to the magistrates. Mr Mulhern thought that the claimant's solicitors would want to consider the position further. Thus, his letter continued:

"You have 21 days from the date of conviction on which to further consider the position. You will be entitled to add, amend or substitute any further points of law [or] jurisdiction on which you are asking the justices to state a case for the opinion of the High Court. Otherwise I will at the end of the 21 day period refer the application as it stands to the Justices."

11. Mr Mulhern's assertion that he did not address at the time the issue whether any of the other questions raised points of law which could properly be referred to the magistrates is difficult to reconcile with (a) counsel's recollection of what Mr Mulhern told him, and (b) the Acknowledgment of Service which has all the hallmarks of having been drafted by Mr Mulhern himself, and which states that, "only Question 4... was accepted as being a point of law for which the justices would be asked to state a case". Moreover, Mr Mulhern's assertion that he did not address the question later is difficult to reconcile with what happened subsequent to his letter of 15th April. The claimant's solicitors did not take up Mr Mulhern's invitation to "add, amend or substitute any further points of law [or] jurisdiction". If Mr Mulhern had not decided not to refer to the magistrates any of the other questions in the documents submitted to him on 12th April, why did he not refer those other points to the magistrates, when the 21 days had elapsed, which is what he had said he would do in the last sentence of his letter?
12. But whether he really had considered whether any of the other questions in the document submitted to him on 12th April raised points of law which could properly be referred to the magistrates, the fact is that they were not. The only question brought to their attention was question 4. Section 111(5) provides that magistrates may refuse to state a case if they conclude that an application to state a case is frivolous. They took the view that the application was frivolous, because it is open to the Justices' Clerk to give advice to magistrates, even where another clerk has been present in court acting as legal adviser to the magistrates, and the Justices' Clerk has not been present. That decision was notified to the claimant's solicitors by a letter from Mr Mulhern dated 22nd May.
13. For the record, an application for bail was made on behalf of the claimant on 12th April, following Mr Mulhern's acceptance that question 4 was sufficient for the purpose of triggering the claimant's right to apply for bail. That application was refused, but the claimant was granted conditional bail by Scott Baker J (as he then was) on 26th April. The claimant has been on bail ever since.

The claim for judicial review

14. The claim for judicial review was lodged just in time on 22nd August. Some extravagant relief was sought, including a declaration that the "procedure leading up to [the claimant's] conviction[s] was incorrect" and an order quashing his convictions. The only realistic relief which was sought was an order requiring the magistrates to state a case. As will become apparent in a moment, not even an order in those terms is now pursued. What is now sought is an order requiring the magistrates to consider whether a case should be stated on some of the questions which were not referred to them.

Question 4

15. As I have said, the only question which the magistrates considered was question 4. Accordingly, that was the only question for which a claim for an order requiring the magistrates to state a case could be made. However, Miss Beverley Roberts for the claimant accepts that the magistrates' conclusion that an application limited to that question was frivolous cannot be faulted. That is because she accepts that it is indeed open to a Justices' Clerk to give advice to magistrates, even where another clerk has been present in court acting as legal adviser to the magistrates, and the Justices' Clerk has not been present. She said that the Justices' Clerk could only do so, however, if he had been correctly informed of all the relevant facts. Since there was no evidence that Mr Mulhern had not been correctly informed of all the relevant facts relating to the three points to which question 4 related, the factual basis for criticising Mr Mulhern had not been established. If there had been evidence that Mr Mulhern had not been correctly informed of all the relevant facts, the fact that he had not been would have had to have been referred to in the question.

The remaining questions

16. Even on Mr Mulhern's version of events, the remaining questions were not put to the magistrates. They should have been. It would, of course, have been open to Mr Mulhern to give legal advice as to whether the questions raised points of law, and if they did, whether the answers were so obvious that the application for a case to be stated was frivolous, and his advice on these topics could have been robust. But at the end of the day the decision was that of the magistrates, and the questions should have been considered by them. Thus, subject to one important consideration, the claimant is entitled to an order requiring the magistrates to consider them.
17. The reservation is this. Judicial review is a discretionary remedy, and it would not be right to order the magistrates to consider any of the questions if the magistrates would inevitably have decided that the questions did not raise questions of law or were unarguable. Accordingly, it is necessary to consider each of the questions asked to see whether the magistrates would inevitably have regarded them as frivolous.
18. Four of the questions can be disposed of quickly. Question 5 repeats question 1 in different language, and question 8 is a wrap-up question, asking whether the claimant's convictions were safe, given the points made in the other questions. Moreover, Miss Roberts conceded that questions 2 and 7 either did not raise questions of law or were questions whose answers were obvious. I have already dealt with question 4, so that leaves questions 1, 3 and 6.
19. Question 1 reads:

"The chairwoman stated that the defendant's good character was no defence. Is this correct given the advice of the Clerk to the Justices that good character can only go to credibility not propensity, likelihood of committing the offences. Did the clerk to the Justices err in law. Did the justices err in fact/law after receiving that advice."

In effect two questions were being asked. First, the claimant's solicitor at his trial had relied on the claimant's good character. It is not in dispute that Mr Mulhern advised the magistrates that a defendant's good character was not a defence to a criminal charge. Thus, the first question was whether that advice was correct. In my view, it cannot possibly be said that that advice was not correct. The magistrates would inevitably have concluded that Mr Mulhern was doing no more than correctly advising them that it was open to them to convict the claimant, even though he had no previous convictions.

20. The other question posed in question 1 is a different matter. It is claimed by the solicitor who represented the claimant at the trial that Mr Mulhern advised the magistrates that the claimant's good character was relevant only to his credibility as a witness, and not to his propensity to commit the offences with which he was charged. Miss Steyn did not seek to argue that if that had been the advice which Mr Mulhern gave, that advice would have been wrong. The issue is whether that was the advice given to the magistrates. Mr Mulhern denies that he gave the magistrates the advice attributed to him by the claimant's solicitors, although he accepts that there was some discussion in court, and presumably in the presence of the magistrates, of the dual relevance of good character, ie credibility and propensity. If he had commented in the presence of the magistrates that in his view good character was not relevant to propensity, that would have been tantamount to giving that advice to the magistrates. The statement of the magistrate who chaired the bench at the claimant's trial does not help. Her statement refers to the advice about good character not being a defence, but it does not refer to such discussion as Mr Mulhern admits there was about the effect of good character on credibility and/or propensity.
21. In short, it cannot be said that the advice attributed to Mr Mulhern was not given. It follows that the magistrates should consider the second part of question 1. It will be for them to say what advice they received. But even if they agree with Mr Mulhern that they did not receive advice at all as to whether good character was relevant to credibility or propensity or both, the lack of any advice as to the effect of good character could well have made it appropriate for them to state a case on the question.
22. Question 3 reads:

"Was the clerk to the court wrong in allowing the Crown to pursue a line of questioning concerning an allegation of false imprisonment. Defence say this is wrongly admitted - inadmissible - irrelevant. Was the clerk wrong in law to allow it since it was irrelevant and prejudicial."

The point being made is that the claimant was originally charged with falsely imprisoning the complainant, as well as assaulting her. That charge was not proceeded with, and the criticism is that despite that the prosecution was permitted to cross-examine the claimant about whether he had falsely imprisoned the complainant immediately after assaulting her, on one of the occasions in question. In my view, it is inevitable that the magistrates would have regarded this point as unarguable. The fact that the claimant had originally been charged with false imprisonment was not put to him, and his conduct immediately after he had allegedly assaulted the complainant was part of the surrounding circumstances on which he could properly have been cross-examined.

23. Question 6 reads:

"Was the advice given to the justices by the clerk to the justices wrong in law, namely that the evidence adduced that the victim was violent in a bar and also was responsible for damage to the defendant's bed was not relevant and incapable of being evidence that the victim has a propensity for violence. The Appellant submits that this advice was wrong. The Appellant submits that this is [germane] to the nature of the victim and of the relationship from which the offences arise."

The claimant's defence to the charges was that the complainant had attacked him, and that any injuries which he had caused to her had been caused in self-defence. The defence case was that her propensity to violence was demonstrated by the incidents to which questions 6 refers. Again, Miss Steyn did not seek to argue that if the magistrates had been advised that this evidence was irrelevant, that advice might have been wrong. The issue is whether that was the advice given to the magistrates. That will be for the magistrates to say, though I note that in their witness statements neither Mr Mulhern nor the chairwoman of the bench deny what the claimant's solicitor has unequivocally asserted was the advice which Mr Mulhern gave. It follows that the magistrates must consider question 6 as well.

Conclusion

24. For these reasons, therefore, the order which I make is a mandatory order requiring the magistrates who presided over the claimant's trial to consider whether the opinion of the High Court should be sought on the following two questions: (i) Was the Justices' Clerk wrong in law to advise them that the claimant's good character was relevant only to his credibility as a witness, but not to his propensity to commit the offences of which he was charged? (ii) Was the Justices' Clerk wrong in law to advise them that the evidence that the complainant had been violent in a bar and had damaged the complainant's bed was irrelevant?
25. It seems to me that both Mr Mulhern and the magistrates are going to need a transcript of the judgment, and therefore I direct that there be a transcript of the judgment.
26. Are there any consequential applications?
27. MISS ROBERTS: My Lord, I benefit from Legal Aid Taxation, I wonder if this could be sent for taxation?
28. MR JUSTICE KEITH: Yes. You are not asking for costs inter partes then?
29. MISS ROBERTS: My Lord, I would.
30. MR JUSTICE KEITH: I beg your pardon?
31. MISS ROBERTS: I would ask for full costs in this application.
32. MR JUSTICE KEITH: Yes, were you not intending to? You merely asked for what used to be called Legal Aid Taxation. Have I put into your mind something you were not intending to apply for?
33. MISS ROBERTS: My Lord, I am aware I should have a schedule of costs here today and I do not.
34. MR JUSTICE KEITH: That only goes as to how they should be assessed. The first question is: should there be an order for costs?
35. MISS ROBERTS: Well, my Lord, I say, yes, there should be an order for costs. This is clearly a matter where the claimant has now been vindicated and these matters should have gone before the magistrates, and I would say these are costs that should come out of the Treasury Secretary.
36. MR JUSTICE KEITH: One of the difficulties that it could be said you face in your application for costs is that none of the relief that you sought in your claim for judicial review has been granted. In fact, the only realistic relief that was sought was relief that you abandoned. You did nothing to let the magistrates know beforehand that you were abandoning the only realistic relief, it was abandoned by you in the course of the hearing, and the only relief that you have in fact got is relief that was never sought.
37. In those circumstances what do you want to say about whether or not you should still have your costs in the light of that?
38. MISS ROBERTS: My Lord, I accept what has been said. I would say we still should have costs. This is a matter which, had the Justices' Clerk allowed the magistrates to consider the other questions, this matter would not have been before the court today. I accept that the application did change in the course of the hearing. I do not think it would have made any difference, and forgive me for speaking on behalf of my learned friend, but I do not think it would have made any difference. The assertion during the hearing is that these questions were never put to the magistrates and that is what your Lordship has ruled.
39. MR JUSTICE KEITH: No, I have not ruled -- sorry, I beg your pardon, I am sorry, I interrupted you, please carry on.
40. MISS ROBERTS: What has been clear from this hearing is that these questions were not put to the magistrates.
41. MR JUSTICE KEITH: Yes, that is true.
42. MISS ROBERTS: And it is clear now that they should have been. In those circumstances it was never argued that they were not, so it would not have changed the flavour of this application in any event.
43. MR JUSTICE KEITH: It is clear that they should have been put to the magistrates if, as a matter of fact, Mr Mulhern gave the magistrates the advice which is contended for. I have not made any decision as to whether or not he gave the advice contended for, though I have made one or two comments as to where the probabilities are. If, in fact, the magistrates decide that he did not give them the advice which your side claims he did, then it will be for them to decide whether or not, nevertheless, to state a case.
44. I appreciate that I have said that in relation to question 1, if there was no advice as to how they should treat good character, then that of itself may be a matter upon which they should seek the opinion of the High Court, but, at the end of the day, one of the critical questions which is unresolved by my judgment is: what was the advice that was, in fact, given?
45. MISS ROBERTS: Indeed. In light of that, my Lord, I have no further observations.
46. MR JUSTICE KEITH: Very well. Miss Steyn, what do you have to say?
47. MISS STEYN: My Lord, first, as a matter of jurisdiction, your Lordship does not have the power to order costs against the defendant itself. Your Lordship would have power to make an order that the Lord Chancellor make payment in respect of costs, but in accordance with section 53A of the Justices of the Peace Act 1997, unless the justices or Justices' Clerk acted in bad faith, then an order cannot be made against the defendant. I can hand that up if your Lordship wishes to see it.
48. As far as the principle of whether or not costs should be ordered, I would echo your Lordship's remarks. First, that none of the relief that was sought has been granted, and the relief that has been granted is different from that which was sought. There were numerous concessions during the hearing and the case changed a great deal, and it cannot be suggested that the defendant's response to the case would necessarily have been the same if the case had been put at a much earlier stage in the way that it was subsequently put during the course of the hearing.
49. So for those reasons, in my submission, the appropriate order would be no order for costs.
50. MR JUSTICE KEITH: Thank you, Miss Steyn. Do you wish to reply to that, Miss Roberts?
51. MISS ROBERTS: No, thank you.
52. MR JUSTICE KEITH: Well, I do think the appropriate order for costs to make is no order as to costs for the reasons that I put to Miss Roberts when she made her application, but there will be an order equivalent to what used to be called Legal Aid Taxation of the claimant's costs.
53. Good. Is there anything else? Thank you both for your help.