CO/2946/2002 
Neutral Citation Number: [2003] EWHC 146 Admin
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Monday, 27 January 2003
 B E F O R E:

 MR JUSTICE MCCOMBE

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THE QUEEN ON THE APPLICATION OF WOTTON
(CLAIMANT)

-v- 

CENTRAL DEVON MAGISTRATES' COURT
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
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)
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MR KERRY BARKER (instructed by Crosse & Crosse, Exeter EX1 1PL) appeared on behalf of the CLAIMANT
THE DEFENDANT WAS NOT REPRESENTED 

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J U D G M E N T 
(As Approved by the Court) 
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Crown copyright©
Monday, 27 January 2003 
Judgment

1.	MR JUSTICE MCCOMBE:  I have before me an application for judicial review of a decision of the justices sitting at Honiton, whereby they refused to stay proceedings in a prosecution brought against Mr Phillip George Wotton.  The circumstances of the prosecution were these: Mr Wotton is a 62-year-old gentleman who lives in sheltered accommodation.  Following complaints from neighbours that Mr Wotton had been carrying out noisy works with heavy tools during anti-social hours of the day and night, the local authority, the Mid Devon District Council, served noise abatement notices on Mr Wotton in or about June 2001, prohibiting him from using those tools.  Complaints continued to be received by the local authority and following visits by officials to his home, these proceedings for contravention of the notices were brought.  On 10 August 2001, invoking their statutory powers, the local authority seized certain of the tools which had given rise to the complaints in the first place.  
2.	On 13 September 2001, the local authority commenced the present criminal prosecution for alleged failure to comply with the noise abatement orders, contrary to section 80(4) and (5) of the Environmental Protection Act 1990.  The trial of that prosecution was originally scheduled for a date in June 2002.  However, by 2001 it became apparent that Mr Wotton had suffered a stroke leading to speech difficulties, facial disability and some weakness of the limbs.  In December 2001, a consultant psychiatrist reported upon his condition and his summary was before the magistrates when they considered this matter.  The summary by Dr Packer, a consultant psychiatrist, is this: 
"In summary, over the last two years Mr Wotton appears to have developed a significant impairment of his cognitive functioning which has probably been caused by stroke disease.  As a result, he is having difficulty formulating abstract thoughts and has some impairment of his short-term memory.  He has become rather reckless and somewhat disinhibited and also rather irritable.  He seems to show a lack of judgment and had difficulty understanding the nature or seriousness of the allegations made against him.  In my opinion, the alleged offending behaviour was caused by his brain damage.  This impairs his judgment and also impairs, to a significant extent, his ability to give instructions.  Unfortunately, his condition is likely to deteriorate especially if he has further strokes."  
3.	The position had moved on by 12 February 2002 when Dr Packer again reported on Mr Wotton's condition where his conclusion was stated: 
"My conclusion is that Mr Wotton's memory and other cognitive functions have been deteriorating over the last two years and this is probably caused by cerebro-vascular disease.  Because of his memory impairment, he cannot give his legal advisers a reliable account of his previous behaviour.  He is also unable to put the evidence into perspective and to understand its significance.  His evidence given in court is likely, therefore, to be unreliable.  For these reasons I believe that he is not properly fit to stand trial.  Because the underlying cause of his cognitive impairment is likely to be progressive, the situation is not likely to improve."
Not surprisingly, in the light of those medical reports, an application was made to the magistrates for a stay of the proceedings on the basis that it was not possible for Mr Wotton to have a fair trial given his medical condition.  The evidence from Dr Packer in those reports was before the magistrates and there was not evidence pointing in any other direction from the prosecution.  The magistrates heard the application for a stay on 24 April 2002, and they refused the application.  They gave their reasons, most helpfully provided to this court in full terms, and I quote the essential part of the them:
"We, as a court, are here to protect the court's process from abuse.  We are confined to matters directly affecting the fairness of the trial, and are aware that the parameters of such powers are set quite narrowly.  We are satisfied that the Mid Devon District Council have not acted oppressively or unfairly.  We have listened to Mr Crosse and Miss Tebbey and have read fully both skeleton arguments.  Although we have seen written evidence that shows Mr Wotton is unwell and that his health may deteriorate, we are not of the view at this stage that this provides good reason why we should stay the proceedings.  There is nothing before us to suggest that Mr Wotton would have nothing but a fair trial because his interests are safeguarded by him being legally represented and the further protection in place in the court.  There is equality of arms because Mr Wotton's interests are adequately protected by virtue of his legal representation.  We feel that in arriving at this decision, we as an authority have been acting compatibly with the European Convention of Human Rights, we therefore do not stay the proceedings on the grounds of abuse of process."  
4.	The application for a stay was, therefore, refused and this application for judicial review of the decision was lodged on 21 June 2002.  By order of 23 July 2002, Bell J gave permission to apply for judicial review and his observations were: 
"Dr Packer's latest report (February 2002) was 5 months after the claimant's stroke (September 2001).  It is now 5 months later still.  The court will be assisted by an up-to-date report from Dr Packer.  Mid Devon District Council should be joined as an interested party and has leave to file medical evidence if it chooses to do so."  
5.	Suffice it to say, further medical evidence by way of a report from Dr Packer of 11 October 2002 was before this court, which, in short, does not disclose any improvement to Mr Wotton's condition.  The local authority, the Mid Devon District Council, has indicated that it does not intend to contest this proceeding by way of any argument, or to be represented before this court, and they have not so been represented.  Nor have they adduced any further medical evidence for which they have been given leave by Bell J's order.  
6.	Mr Barker, in a helpful skeleton argument and in oral submissions this morning, has submitted that the decision of the magistrates fails to accord with the necessary practice indicated by English common law, that a defendant who is adjudged by proper medical evidence to be not fit to stand trial should not be subjected to the criminal process.  He further submits that the failure to afford to the defendant a stay, as asked, infringed Article 6 of the European Convention on Human Rights which, in effect, in these circumstances, is to a parallel effect as the English common law.  He points to the decision of V v the United Kingdom [2000] 30 EHRR 121, where to meet the point advanced by the justices in their reasons, Mr Barker refers to the passage at paragraph 90 in the judgment which indicates that if a defendant is not in a position to participate fully in his trial, the matter is not remedied by his being represented by qualified and suitable legal representation.  Mr Barker submits that the minimum requirements for a fair hearing at a criminal trial are: one, the defendant must understand what he is said to have done wrong.  Two, the court must be satisfied that the defendant, when by act or omission he did wrong, had the means of knowing that it was wrong.  Three, the defendant must understand what defences, if any, are available to him.  Four, the defendant must have reasonable opportunity to make relevant representations if he wishes.  Five, the defendant must have the opportunity to consider what representations he wishes to make once he has understood the issues involved.  
7.	Mr Barker amplified those minimum requirements in all the arguments this morning by saying, and I think all this is correct, that the defendant must be able to give proper instructions and to participate by way of providing answers to questions and suggesting questions to his lawyers in the circumstances of the trial as they arise.  All those submissions appear to me to be entirely correct.  In the face of Dr Packer's uncontested evidence at the application before the magistrates, to the effect that Mr Wotton was not properly fit to stand trial, quite apart from any question arising under Article 6, it seems difficult to see how the justices could have concluded that these criminal proceedings could go further.  Quite apart from anything contained in the European Convention, it has always been clear that those who are not fit to stand trial, do not stand trial, and for my part I find it difficult to see how the justices could have reached a contrary conclusion.  It seems to me inevitable that this judicial review application should be granted and that a stay of the proceedings should be directed.  However, it has been helpfully pointed out to me by Mr Barker that obviously the justices' powers were, in fact, not confined simply to convicting or acquitting this defendant if he stood trial.  It has been pointed out that under the relevant provisions of the Noise Act 1996, notwithstanding the absence of a conviction, it would have been open to the justices if they had seen fit, under paragraph 5 of the schedule to that Act, to order the retention or disposal of any equipment such as that seized in the present case, in relation to a case of a statutory nuisance falling within section 79(1)(g) of the Environmental Protection Act.  Therefore, notwithstanding the absence of a conviction in this case, Mr Barker concedes it would be open to the justices if they saw fit to direct a dealing with the equipment in a manner conducive to preventing the disturbance to the neighbours which led to the initial notices and the present prosecution.  
8.	It seems to me, therefore, that the correct course would be, as I indicate, to grant this application for judicial review, direct a stay of the prosecution against Mr Wotton, save and so far as the justices may wish to consider invoking their powers under paragraph 5 of the schedule to the 1996 Act, and that I would, accordingly, remit the matter to the justices for consideration of whether those powers should be exercised in this case.
9.	MR BARKER:  My Lord, it might be helpful to add a paragraph to the effect that the section 11 powers were not available to them. 
10.	MR JUSTICE MCCOMBE:  The section 11 powers were not available?
11.	MR BARKER:  Yes. 
12.	MR JUSTICE MCCOMBE:  You would like me to indicate that because the offence was not punishable by imprisonment, it was not open to them to go through the procedures under section 11 of the Powers of Criminal Courts Sentencing Act 2000.  For what it is worth, Mr Barker, I so indicate and so far as is necessary, you can obtain a transcript of my remarks.  
13.	MR BARKER:  I am grateful, my Lord.  I am publicly funded, may I ask for an assessment -- 
14.	MR JUSTICE MCCOMBE:  An assessment of your publicly funded costs?  
15.	MR BARKER:  Yes, please.
16.	MR JUSTICE MCCOMBE:  Yes, of course.  Thank you very much for your skeleton argument which was very helpful and for your arguments that morning.
17.	MR BARKER:  Thank you, my Lord.