England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		24 October 2003

1. MR JUSTICE ROYCE: In this application for judicial review the claimant, who is aged 15, challenges the decision of the Balham Youth Court granting the prosecution's application for an adjournment of his trial for assault of Joshua Manning occasioning actual bodily harm.
2. The history of the matter is as follows. The offence was alleged to have taken place on 20th January 2003. The allegation was that the claimant had struck Manning on the head with a metal bar, causing a minor injury. The prosecution case depended on two witnesses. The complainant, Joshua Manning, who is aged 19, and an eye-witness, Julian Quee, aged 18.
3. The case was listed for trial on 6th March 2003. On that morning neither of the prosecution witnesses attended on time, neither did the claimant. The prosecution made inquiries and were informed that Manning was in bed. They had no information about Quee. The prosecution applied for an adjournment. In the statement of grounds it was said that this was not forcefully opposed because the claimant himself had still not arrived. The adjournment was granted and a pretrial review was fixed for 19th March. In fact, later on 6th March, both the claimant and Manning did arrive. The court accepted an explanation from the claimant's mother about the claimant's reasons for being late. There was never any explanation forthcoming in relation to Quee's absence. In was apparent that both Quee and Manning had been properly warned.
4. The trial was relisted for 28th April 2003. Once again, Manning and Quee did not attend. Inquiries were made. It was ascertained that both were at work and, it was said, were unable to leave. It was stated that both thought that the trial was "tomorrow or the next day". The claimant had attended in proper time on this occasion. The prosecution applied for an adjournment, emphasising the seriousness of the offence. They accepted that all the correspondence on the CPS file indicated the correct trial date, including the witness warning form. The application was opposed. The defence pointed out that this was the second time it had happened; that the claimant was only 15; that the explanation that both witnesses thought it was "tomorrow or the next day" was simply not credible.
5. The District Judge granted the adjournment, saying that he did so with some reluctance, and going on to say that there may be an innocent explanation for the non-attendance. What he did was to adjourn for 14 days for a further pretrial review when, he said, he would want to know why the witnesses had not attended. The explanation, in fact, advanced on 9th May for their non-attendance was that they had forgotten. That, of course, was not the explanation that had been advanced on 28th April. Miss Levinson, on behalf of the claimant, contends that the decision was irrational and manifestly wrong.
6. Section 10(1) of the Magistrates' Court Act 1980 provides:

"A magistrates' court may at any time, whether before or after beginning to try an information, adjourn the trial, and may do so, notwithstanding anything in this Act, when composed of a single justice."

Helpful observations on the proper approach to an adjournment application where witnesses do not attend can be found in R v Aberdare Justices ex parte Director of Public Prosecutions (1990) 155 JP page 324. Bingham LJ, as he then was, wanted to make two things quite plain:

"First, a decision as to whether or not proceedings should be adjourned is, as counsel for the defendant rightly urged, a decision within the discretion of the trial court. It is pre-eminently a discretionary decision. It follows, as a matter of undoubted law, that it is a decision with which any appellate court will be very slow to interfere. It will accordingly interfere only if very clear grounds are shown for doing so.

Secondly, I wish to make it plain that the justices in this case are in no way open to criticism for paying great attention to the need for expedition in the prosecution of criminal proceedings. It has been said time and time again that delays in the administration of justice are a scandal, and they are more scandalous when it is criminal proceedings, with which a court is concerned."

7. In R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110, Bingham LJ (Lord Chief Justice) at 127G, said:

"It is not possible or desirable to identify hard and fast rules as to when adjournments should or should not be granted. The guiding principle must be that justices should fully examine the circumstances leading to applications for delay, the reasons for those applications and the consequences both to the prosecution and the defence. Ultimately, they must decide what is fair in the light of all those circumstances.

This court will only interfere with the exercise of the justices' discretion whether to grant an adjournment in cases where it is plain that a refusal will cause substantial unfairness to one of the parties. Such unfairness may arise when a defendant is denied a full opportunity to present his case. But neither defendants nor their legal advisers should be permitted to frustrate the objective of a speedy trial without substantial grounds. Applications for adjournments must be subjected to rigorous scrutiny."

8. More recently, in R (On the application of Walden) v Highbury Magistrates' Court, and R (On the application of Stern) v Highbury Magistrates' Court [2003] EWHC 708, this court considered two separate cases where justices had acceded to the prosecution's application for an adjournment where witnesses had not attended. In each case the defendant had appeared for trial. There was no explanation for the absence of the prosecution witnesses. The inference was that they had not been warned. Mitchell J, at paragraph 15, said:

"Beyond doubt, in each of these cases the prosecution were the authors of their own misfortune. Save for acknowledging the fact that their witnesses had not turned up, and the inevitable inference that accordingly they could not have been warned, the prosecution on each of these occasions were not armed with any explanation for what had gone wrong, any more than I am today. Justices are obliged, as these justices were obliged, to pay regard to the interests of justice as they affected each side. In cases where offences such as these are alleged, a conviction can, of course, have a highly disruptive effect upon the defendant's life because an inevitable part of penalty is disqualification.

As against that, had the application been refused, there is, or would have been, the collapse of the prosecution, though in this case, of course, the prosecution were the authors of their own misfortune. The justices have an obligation formally to examine the circumstances leading to an application, the reasons for it, and the consequences, both to the prosecution and to the defence. As Bingham LJ observed, 'applications for adjournments must be subjected to rigorous scrutiny', and that observation applies regardless of which side is making the application."

He went to 17 to say:

"The single inquiry made in each of these cases was for an outline of the prosecution's case. The prosecution was not, for example, sent away to investigate the explanation for non-attendance of witnesses. Finally, the court gave no reasons in the case of Mr Stern for its conclusion; and in the case of Mr Walden, gave limited reasons which did not reveal that any regard had been had for any other considerations save for the two identified. Furthermore, these reasons were given in the absence of any 'rigorous scrutiny' of the application. The longer courts tolerate the sort of inefficiency which seems, in each of these cases, to be the explanation for the failure of the witnesses to attend court on the date fixed for the hearing, the longer it will continue. To tolerate it is to encourage it."

9. In the present case, the claimant was only aged 15. It is of great importance that in the Youth Court trials take place with expedition. It is an anxious time for any youth to have to come to court and await his trial only to be told that it is not to proceed. In this case, it happened not just the once, it happened on two occasions. Rigorous scrutiny of the so-called reason for non-attendance advanced on the second occasion would have revealed that it was not credible. Indeed, as Miss Levinson points out, it was not on the face of it credible, and subsequently a wholly different reason was advanced.
10. This was not a case where there was any suggestion of any pressure or intimidation being put upon these witnesses in order to ensure they did not attend. Indeed, we are told that Miss Levinson raised a matter with the District Judge that there was concern on behalf of the claimant that he was being contacted by the witnesses and having pressure put upon him.
11. I come to the conclusion it is appropriate for this court to interfere. In my judgment, the adjournment application should have been refused. If it had been, the inevitable consequence would have been that the case would have been dismissed.
12. For those reasons, in my judgment, it is proper for this court to quash the order that the trial be adjourned.
13. LORD JUSTICE KENNEDY: I agree. It is important to recognise that in this case no criticism whatsoever can be made of the Crown Prosecution Service. Prior to the first proposed hearing date, the complainant and the witnesses upon whom the prosecution proposed to rely were advised of the hearing date by recorded delivery letter. After the first hearing date, they were again advised by recorded delivery letter; and between the two hearing dates a telephone call was made to each of them to ensure that they were aware of the second hearing date.
14. In my judgment, the prosecution could not possibly have done more. When such a situation arises and is brought to the attention of the court, the court then has to consider anxiously whether the public interest in continuing the prosecution, when the complainant and the witnesses do not attend and there is no evidence of intimidation, is such as to cause the court to accede to a request for a further adjournment.
15. For the reasons given by my Lord, I too I am satisfied that in this case the public interest did not require a further adjournment and the matter should have been finally disposed of on 28th April.