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
		28th October 2003

Tuesday, 28th October 2003
1. MR JUSTICE HENRIQUES: The claimant, having obtained leave on 21st May 2003 from Scott Baker LJ and Pitchford J, now seeks judicial review of a decision of the Richmond Justices made, according to the application form, between 14th November 2002 and 5th December 2002 under section 36 of the Youth Justice and Criminal Evidence Act 1999. Let me say at the outset that there is some considerable conflict as to whether or not any order was in fact made on 14th November 2002, it being the claimant's case that no such order was made.
2. In any event the Justices purport to have made an order under section 36 on 5th December 2002 and the claimant seeks a judicial review of whichever order the Justices in fact made, it being, in fact, unclear as to whether an order was made upon the first of those dates or not.
3. There were hearings before the Justices on 14th November 2002, 21st November 2002, 4th December 2002 and 5th December 2002. On 14th November 2002 the court clerk's note reads as follows:

"Pre-trial review:

Defendant not represented, CPS have dates to avoid, but inform the court that there are threats of injury in this case, over 300 letters sent to complainant. I explained to defendant that he will not be able to cross-examine the complainant. Defendant requested one-week adjournment to instruct a solicitor. I made it very clear to the defendant that he should instruct a solicitor if he wanted to cross-examine the complainant, and should do this ASAP today if possible. Remanded on conditional bail to 21/11/02 for trial date to be set."

It will be immediately observed from that note that the chairman of the bench did not seek to inform the defendant that he would not be able to cross-examine the complainant. Such communication appears to have been made by Miss Howell herself.

4. Turning to the claimant's contentions in relation to that day's hearing. His view was that the clerk was doing no more than putting down a marker. He contends that the note overstates what in fact was done. He contends that he asked the clerk to have this conversation in front of the Magistrates, but she refused.
5. A further version of events can be found from a statement made by the CPS solicitor, Mr Malik, who stated:

"14.11.02; the Defendant needs further time to instruct solicitors, alternatively the Defendant wishes to conduct the trial. Order made pursuant to section 36 Youth Justice and Criminal Evidence Act 1999 prohibiting the Defendant from cross-examining particular witness."

6. There is nothing whatsoever in the clerk's note to suggest that Mr Hillman was permitted to make any representations, either to the clerk or to the Justices. Further, there is nothing in the note to suggest that the Justices were invited to consider the matters to which they must have regard pursuant to section 36(3). Pursuant to that section they must have regard to (a) any views expressed by the witness... (b) the nature of questions likely to be asked... (c) any behaviour on the part of the accused at any stage of the proceedings... (d) any relationship (of whatever nature) between the witness and the accused. Sub-paragraphs (e) and (f) are not relevant.]
7. There is nothing before me to indicate that any of these matters were considered by the Justices. In giving judgment, when granting leave, Scott Baker LJ specifically said:

"I would invite both the clerk to the Magistrates' Court and the CPS to file some detailed evidence as to what they say happened on the material occasions".

8. The Administrative Court Office has served notice of these proceedings upon both the Crown Prosecution Service and the Richmond Magistrates' Court. Neither the Magistrates nor the Crown Prosecution Service have chosen to attend today, nor indeed to communicate with the court. I am perfectly satisfied, however, that in their absence I can properly hear this application.
9. The second hearing took place on 21st November 2002. The court clerk's file reads as follows:

"Defendant not represented, defendant requests a preliminary hearing on the point of cross-examination of the complainant, set down for legal argument on 5/12/02. Trial date fixed for 2 days on the 27th/28th January 2003. Defendant advised he must be represented but (cannot compel it), defendant indicated to the court that a barrister friend may represent him. Remanded on conditional bail as before".

10. According to the Crown Prosecution Service on that date the note reads:

"21.11.02; the Defendant challenges the decision made on 14.11.02. Adjourned to 05.12.02 for legal argument. Trial date set for 27th and 28th January 2003".

11. According to the claimant he was told by the prosecutor that the prosecution had a list of witnesses for him. He handed to the Crown Prosecution Service his personal transcript of his police interview, and a list of requested disclosure, and a list of witnesses that he wished to call. He indicates that part of the reason why the trial date was set for 27th and 28th January was to give him time to receive a list of witnesses from the prosecutor and to amend witness summonses if appropriate.
12. So far as the claimant's case is concerned the note from the court clerk would appear to confirm the claimant's contention that no order was made under section 36 at the first hearing on 14th November. On 4th December the court clerk's file note reads:

"Letter sent to the court today from the defendant, requesting an adjournment of the legal argument hearing on the 5/12/03. Letter handed to the bench. CPS object to the adjournment request. Citing that the defendant has had numerous adjournments in this matter, and has been represented at various times throughout the proceedings by solicitors, and has had sufficient time and ample opportunity to prepare. The interests of the complainant also need to be taken into consideration in the interest of Justice. The issue in question has been raised at subsequent pre trial reviews and advice given to the defendant. Adjournment request refused."

13. A short note from the Crown Prosecution Service indicates that:

"The Defendant seeks more time to prepare for the legal argument listed on 05.12.02. Application is refused." ]

14. Likewise, the claimant has noted 4th December 2002:

"Unsuccessful paper application to apply to have hearing of 5th December set aside on grounds that cannot be fairly decided before trial. In the alternative to adjourn to polish legal arguments."

15. Accordingly the matter came before the court on 5th December. I have before me notes of the CPS representations by Miss Thomas and the note of the claimant's representations. Those need not be recited at length. It will suffice if I set out the reasons given by the Justices in their written document sent to this court prior to the permission hearing. It reads as follows:

"The CPS ask the court to make an order of its own motion, to prevent the defendant (Mr Hillman) from cross-examining the complainant in person.

We have considered the representations made today by both the CPS and Mr Hillman, and take note of the submissions made by Mr Hillman on the law, which he addressed us to.

However, we order that a direction under [S.36 YJCEA 1999] be made. Having heard submissions from both parties at length today, we are satisfied that the indication given on the 14/11/02 was correct. In particular we take account of Subsections (b) [and] (c) of [S.36(3)(3) YJCEA 1999].

There has been no material change of circumstances since 14/11/02 and we find that in the interests of justice a direction should be given and Mr Hillman (the defendant) should seek representation if he wishes to cross-examine the complainant."

]

16. The very short note from the Crown Prosecution Service reads:

"Defendant's Legal Argument to revoke the order made on 14.11.02 is unsuccessful."

]

17. The claimant's written note as to what occurred is this:

"5th December 2002 hearing re section 36 direction. Clerk misleads bench that direction already given and hence they are only interested in section 37 arguments. I ask to adjourn to polish up my legal arguments. This is turned down after Crown Prosecution Service say that I have already had lots of adjournments and complainant wants things hurried along (actually it would have made no difference to her as any adjournment of this would not affect trial date). Magistrates listen to clerk re section 36 and give a judgment that a section 36 direction has already been made in the interests of justice and that there is no change in material circumstances."

18. The basic difficulty is highlighted in the claimant's note. The court and the Crown Prosecution Service appear to have proceeded on the basis that an order was made under section 36 on 14th November. If such an order was in fact made it is difficult to see why the order was not made by the chairman of the bench, as opposed to the clerk, who upon her own note appears to indicate, "I explained to defendant that he will not be able to cross-examine the complainant."
19. There is nothing in the notes to indicate that any of the several matters which must be considered pursuant to section 36(3) were in fact considered. If in fact an order was made on 14th November 2002 it is incumbent upon this court to quash that order, on the grounds that the claimant was given no opportunity to make any representations as to why such an order should not be made. Secondly, the Justices' attention was not brought to the relevant matters pursuant to section 36(3), and that the clerk to the Justices pronounced their order as opposed to the clerk. I am quite satisfied from everything that I have read that the claimant himself was under the impression that no such order had been made.
20. In relation to the order made on 5th December; as the claimant asserts, reference to the fact that there had been no change in circumstance would appear to indicate that upon 5th December the Justices were proceeding under section 37(2) as opposed to section 36. Section 37(2) reads:

"The court may discharge a direction if it appears to the court to be in the interests of justice to do so, and may do so either -

(a) on an application made by a party to the proceedings, if there has been a material change of circumstances since the relevant time, or

(b) of its own motion."

21. There was plainly a confusion on the part of the Justices as to their function on 5th December. The note indicates that in particular they took account of subsections (b) and (c) of section 36(3) of the Youth Justice and Criminal Evidence Act 1999, and yet in the next sentence they go on to say, "There has been no material change of circumstances since 14/11/2002."
22. If the Justices were hearing an application by the claimant to discharge an order under section 37, then their only concern was as to whether there had been a material change of circumstances. Section 36(3) would not then have been of concern to them. If, however, they were considering an application under section 36 the question of a material change of circumstance would not have been relevant for their consideration.
23. There remains considerable confusion as to what in fact occurred upon those two dates, namely 14th November and 5th December. The only fair and proper decision today is to quash whatever orders may have been made upon either of those two dates. I remit the case to the Richmond Justices with a direction that they consider the section 36 matters afresh. In particular that they give the claimant, Mr Hillman, a full opportunity to address representations to them; that all such representations are addressed to them in the presence of the Justices as opposed to the clerk, that the Justices attention is brought to section 36(3)(a), (b), (c) and (d), and that the Justices themselves announce such decision as they may reach in relation to such application.
24. Before leaving this matter it has been necessary for me to consider a very considerable amount of documentation. The claimant is by profession a teacher of classics. He has a degree in classics from Cambridge University. The background to this matter involves a disagreement with a former landlady of a public house. There had earlier been a disagreement between the claimant and another male person who had also drunk there. Eventually the claimant was banned from attending at the public house.
25. On his own admission he has written a considerable number of letters, some to the person with whom he had the initial disagreement. Thereafter, a number of letters to the landlady. I have had an opportunity of reading those letters. Many of them say little or nothing. Put at their highest some half dozen are positively unfriendly. There is the occasional offensive four letter word, but I am told that whilst the first letter was written in October or November of 1999, the last letter was sent in August 2002. The recipient of those letters is no longer landlady of the public house. It is plain that the claimant felt a passionate sense of being barred out from the public house, and to a similar extent, perhaps, a sense of grievance that his name had found its way on to the police computer.
26. So far as the public house is concerned the change of landlord and landlady has resulted in the claimant being able to return to that public house and to drink there. Any continuing sense of unhappiness at being barred has now dissipated.
27. It may well be that on 14th November, when the question of an order pursuant to section 36 was canvassed, that both the Crown Prosecution Service and the court were under a mistaken impression as to the contents of the letters. Without having read them all, but having read a considerable number of them, it is difficult to discern in those letters any actual threats. Of course, from the perspective of the lady receiving those letters, at the time that they were being received and no doubt for a short period of time thereafter, her anxiety and apprehension and general sense of annoyance may well have been justifiably profound.
28. It may well be that the Crown Prosecution Service wish to reconsider this whole matter, as indeed may the lady herself, in the light of the fact that no letter has been sent since August 2002. There has already been a very considerable expenditure of public funds generated by this case. From all I have seen and read there remains a considerable opportunity for the expenditure of very much more public money. Those are matters which the Crown Prosecution Service may wish to bear in mind when considering what the future is of this case.
29. That decision is, of course, entirely a matter for them. I am satisfied, however, that such orders, as have thus far been made by the Justices at Richmond, cannot stand and they are accordingly quashed. This matter is remitted for their consideration afresh.
30. Thank you. Is there any further matter, Mr Hillman?
31. MR HILLMAN: Clearly, thank you very much, my Lord. I do not know if it makes any difference, just to point out, on the 14th the Justices were not actually there. They had not come in yet.
32. MR JUSTICE HENRIQUES: I think I made that point, that it took place in their absence.
33. MR HILLMAN: Yes. Finally, I did not get the chance -- I do not know if it is relevant or not, but in the complainant's statement of impact, which was served six weeks after the disputed hearing dates, she does have a sentence that she fears being cross-examined by me, which I did not specifically bring to Scott Baker LJ's attention at the permission stage, although I did offer to show him all the documents. Although I mentioned it within seven days thereafter, after he had said he could not say for sure whether or not that the matter would necessarily come to the same decision if I was allowed to make any submissions at any point. I have gone on about this quite a lot --
34. MR JUSTICE HENRIQUES: I think you are departing the point now.
35. MR HILLMAN: I do not want you to feel that I have been trying to hide anything, I just did not get around to mentioning it.
36. MR JUSTICE HENRIQUES: No. Thank you very much.
37. MR HILLMAN: Thank you very much, my Lord.