QUEEN'S BENCH DIVISION
B e f o r e :
MR JUSTICE ROYCE
|RICHMOND MAGISTRATES' COURT||(DEFENDANT)|
|CHRISTOPHER BOUCHER||(INTERESTED PARTY)|
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MRS KIM HOLLIS QC and MISS A POWER (instructed by Crown Prosecution Service, Kingston) appeared on behalf of the DEFENDANT
MISS KATHERINE KELLEHER (Instructed by Lansbury Worthington of London) appeared on behalf the INTERESTED PARTY
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In General No Relief During Hearing, Jurisdiction
"The obligation of this Court to keep out of the way until the magistrate has finished his determination seems to me to be a principle properly to be applied both to summary trial and to committal proceedings.
Accordingly, I would be prepared to dispose of this matter on the first argued point, namely, that there was no jurisdiction in this Court to interfere with the justices' decision, that not having been reached by termination of the proceedings below."
Should proceed if jurisdiction
"In summary then, my answer to the first matter for consideration, is that the Crown have not complied fully with their duties under the statutory scheme for disclosure in that they have not enquired of the Home Office as to the existence of relevant material and have not sought from Intoximeter[s] copies of the engineers' reports which Intoximeters appear willing to disclose. With regard to the information Intoximeters are not willing to disclose, I am of the view that the prosecutor has complied with his duty to consider whether this material would be disclosable if in the hands of the prosecution. He has taken advice that it would not be. He has gone further than that and considered whether he should apply for a witness summons and come to the conclusion that this would not be appropriate. I do not criticise the decisions he has made."
Having found that the prosecution had not fully complied with their duties as to disclosure, the district judge turned to consider the fair trial provisions and whether, as result of the prosecution failure, she should stay the proceedings. She was not persuaded that a fair trial was impossible and concluded:
"The defence have also asked me to consider at this stage exclusion of material under s.78 PACE. This is not an appropriate time for me to make any such decisions which I will consider when weighing all of the evidence following closing submission."
Are we bound by Buck?
"There can be cases in which the evidence is so substantial that it would be sensible to give separate consideration to a preliminary objection based upon regulation 7, but these must be very rare and I do not think that this was such a case. It must be even rarer to have a situation in which judicial review should even be considered before a Chief Constable has reached a final decision on the complaint, if indeed one can be imagined. Normally the time for judicial review would not arise, if at all, before the appeal tribunal had given its decision."
Mr Carter-Manning points out that although it is said that judicial review should be very rare the possibility was not ruled out. I agree, but the court was not dealing with a hearing in a magistrate's court, and there is again no reference to the decision in Buck.
"Whatever may be the power of examining justices, there can be no doubt that this court, in the exercise of its supervisory jurisdiction, has power to prohibit the commencement of committal proceedings."
"Equally, it is not open to doubt the power of this court to prohibit the commencement or continuance of the summary trial of an information on the ground of abuse of process."
I agree, but that, of course, is only an example of the jurisdiction which, in Buck, Lord Widgery CJ recognised to exist. Later Lord Justice Mann dealt with why the matter was best dealt with by this court rather than the Crown Court, but that is not a matter with which we need be concerned.
"I regard as the proper forum in which such a decision should be taken."
That case, Mrs Hollis submits, marked a change in the law, but in my judgment it is not obviously at variance with the principle enunciated and applied in Buck. It is one thing for this court to direct a magistrate to proceed or not to proceed. It is quite another for it to examine what, during a trial, has happened, that is to say the way in which the magistrate has in fact proceeded.