CO/3261/2003 
Neutral Citation Number: [2003] EWHC 2697 (Admin)
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
DIVISIONAL COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 31st October 2003

B E F O R E:

LORD JUSTICE KENNEDY 

MR JUSTICE ROYCE 
 
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THE QUEEN ON THE APPLICATION OF THE CROWN PROSECUTION SERVICE
(CLAIMANT)

-v- 

BOLTON 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 D PERRY & MR R MCCOUBREY (instructed by Crown Prosecution Service (Greater Manchester)) appeared on behalf of the CLAIMANT
The Defendant did not appear and was not represented
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J U D G M E N T
1.	LORD JUSTICE KENNEDY:  This is an application for judicial review of two decisions of justices sitting at the Bolton Magistrates' Court on 6th June 2003.  On that day they were concerned with proceedings under paragraph 4 of schedule 3 to the Crime and Disorder Act 1988.  At the end of the hearing last Tuesday we indicated that we would grant leave to amend the application for judicial review, so as to seek two declarations, and that we would make the declarations sought.  We now give our reasons for that decision.
2.	Section 51 of the Crime and Disorder Act 1998 abolished committal proceedings in relation to offences triable only on indictment, and schedule 3 to the Act sets out the procedure to be followed where persons are sent directly to the Crown Court for trial pursuant to section 51.  Within that schedule paragraph 4 deals with the residual power of justices to take depositions et cetera, and the concern clearly is with those who are in a position to assist the prosecution by giving evidence or producing documents but who are unwilling to do so.  That problem was first addressed in relation to committal proceedings by section 97A of the Magistrates' Courts Act 1980, which was inserted into the 1980 Act by the Criminal Proceedings and Investigations Act 1996.  It was also addressed in Rule 4A of the Magistrates' Courts Rules 1981.  In substance those provisions allowed the prosecution to require the reluctant witness to be brought before a Justice of the Peace to have his evidence taken as a deposition or to produce the document or other exhibit.  The 1998 Act aimed to retain that power in relation to offences triable only on indictment, and to that end paragraph 4 of schedule 3 reproduces in substance the wording of section 97A of the 1980 Act.  So far as material, paragraph 4 reads: 
"(1) Sub-paragraph (2) below applies where a justice of the peace for any commission area is satisfied that - 
(a) any person in England and Wales ('the witness') is likely to be able to make on behalf of the prosecutor a written statement containing material evidence, or produce on behalf of the prosecutor a document or other exhibit likely to be material evidence, for the purposes of proceedings for an offence for which a person has been sent for trial under section 51 of this Act by a magistrates' court for that area; and 
(b) the witness will not voluntarily make the statement or produce the document or other exhibit.  
(2) In such a case the justice shall issue a summons directed to the witness requiring him to attend before a justice at the time and place appointed in the summons, and to have his evidence taken as a deposition or to produce the document or other exhibit.  
(3) If a justice of the peace is satisfied by evidence on oath of the matters mentioned in sub-paragraph (1) above, and also that it is probable that a summons under sub-paragraph (2) above would not procure the result required by it, the justice may instead of issuing a summons issue a warrant to arrest the witness and to bring him before a justice at the time and place specified in the warrant...  
(5) If - 
(a) the witness fails to attend before a justice in answer to a summons after this paragraph;
 (b) the justice is satisfied by evidence on oath that the witness is likely to be able to make a statement or produce a document or other exhibit as mentioned in sub-paragraph (1)(a) above;
(c) it is proved on oath, or in such other manner as may be prescribed, that he has been duly served with the summons and that a reasonable sum has been paid or tendered to him for costs and expenses; and 
(d) it appears to the justice that there is no just excuse for the failure,
the justice may issue a warrant to arrest the witness and to bring him before a justice...  
(7) If any person attending or brought before a justice in pursuance of this paragraph refuses without just excuse to have his evidence taken as a deposition, or to produce the document or other exhibit, the justice may do one or both of the following - 
(a) commit him to custody until the expiration of such period not exceeding one month as may be specified in the summons or warrant or until he sooner has his evidence taken as a deposition or produces the document or other exhibit; 
(b) impose on him a fine not exceeding £2,500."
3.	Paragraph 5 of schedule 3 deals with the use of depositions as evidence.  It provides:
"(1) Subject to sub-paragraph (3) below, sub-paragraph (2) below applies where in pursuance of paragraph 4 above a person has his evidence taken as a deposition.  
(2) Where this sub-paragraph applies the deposition may without further proof be read as evidence on the trial of the accused, whether for an offence for which he was sent for trial under section 51 of this Act or for any other offence arising out of the same transaction or set of circumstances.  
(3) Sub-paragraph (2) above does not apply if -
(a) it is proved that the deposition was not signed by the justice by whom it purports to have been signed;
(b) the court of trial at its discretion orders that sub-paragraph (2) above shall not apply; or 
(c) a party to the proceedings objects to sub-paragraph (2) above applying. 
(4) If a party to the proceedings objects to sub-paragraph (2) applying the court of trial may order that the objection shall have no effect if the court considers it to be in the interests of justice so to order."
4.	This case concerns a prosecution for the murder of a 76-year old woman.  Two men, her son and his friend, have been arrested and are due to appear in the Crown Court to face trial in about six weeks' time.  At the time of the killing a woman, CB, was living with the son, and when she was interviewed she gave certain information.  On 14th April 2003 her solicitors were informed by the police that she was no longer suspected of involvement, but a witness statement was sought from her.  On 14th May 2003 her solicitors replied, saying she was not willing to provide a statement.  The prosecution then invoked paragraph 4 of schedule 3.  An application was made for her to be brought before a justice of the peace and evidence was given in support of that application.  A summons was issued and in response to that summons she attended at Bolton Magistrates' Court on 6th June 2003 with her solicitor.  
5.	There is a difference of recollection as to what happened at the Magistrates' Court on that day.  The initial recollection of the prosecuting solicitor, Mr Bann, was that the solicitor for CB was provided with a list of questions which it was intended to put to her.  The justices then ruled that they were not sitting as a court, and required the police officers who were involved in the investigation to withdraw.  The process then began of taking CB's evidence as a deposition.  She gave her name and address and said how long she had lived at that address, but she then refused, on legal advice, to answer any further questions.  She did so on the basis that the answers would or might incriminate her.  The justices accepted that assertion and she was not required to answer any further questions.
6.	Alan James Connolly, who was acting as legal adviser to the justices on that day, has a different recollection.  He formed the view that when acting pursuant to paragraph 4 of schedule 3 the justices would not be sitting in open court.  He considered the procedure to be analogous to taking a dying deposition, and was influenced by the fact that paragraph 4 does not say that the deposition has to be taken at a designated court house.  
7.	Mr Connolly says that he told those who were in court of his view, and sought confirmation from Mr Robert Walker, the Head of Legal Services at the Magistrates' Court.  Mr Walker was of the same opinion, and Mr Connolly says that he relayed that information to Mr Bann and to the solicitor for CB, and advised them that if they wanted to argue the point they could do so before the justices.  In fact they did not do so, and Mr Bann simply asked the police officers to leave the courtroom before the justices sat.  The recollection of Mr Connolly is supported by the presiding magistrate, Mr Darby, and having seen the statements of Mr Connolly and Mr Darby, Mr Bann, in his second witness statement, accepts that in substance Mr Connolly's recollection is correct.  He says that when Mr Connolly made his position clear nothing was said about arguing the point before the justices, and he felt he was presented with a 'fait accompli'.  He did not in fact attempt to get a ruling from the court, and accepts that he told the police officers that it had been decided that they would not remain.  
8.	I am therefore satisfied that the first of the two decisions which in the judicial review claim form we have been asked to review, namely the decision of the justices that they were not sitting as a court and could therefore exclude the police officers from the proceedings, is a decision that was never made, but the issue of whether proceedings pursuant to paragraph 4 of schedule 3 to the 1998 Act are normally proceedings in open court was ventilated, and can arise whenever such proceedings take place, so it deserves to be considered by this court.  Mr David Perry, who appeared for the claimant before us, submitted that we could give the matter the consideration it deserves if instead of seeking to quash a decision that was never made he were to seek a first declaration in these terms: 
"The procedure of taking a deposition from a witness who will not voluntarily make a statement, pursuant to Paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998, is a proceeding in open court.  In the circumstances of a particular case, however, the Justices may exceptionally exclude persons from the taking of the deposition or otherwise modify the procedure where that will assist in the reception of the evidence or is in the interests of justice to do so.  There is, however, no basis for excluding the party seeking the deposition, which will include the Crown Prosecution Service and representatives of the investigating authority."
We agreed, hence our decision to grant leave to amend to seek the first declaration.
9.	I turn now to the second area of apparent factual dispute.  Mr Connolly's recollection is that after the witness had taken the oath and given her name and address he warned her of her right not to incriminate herself.  She was asked who she lived with and declined to answer on the basis that to do so might leave her open to a charge.  She referred to having been arrested for attempting to pervert the course of justice and having been detained overnight at a police station.  The justices were not persuaded that she had just excuse for refusing to answer the question, and told her to answer it.  She still refused.  Mr Bann reminded the justices of their power under paragraph 4(7).  Mr Teasdale, the solicitor for CB, was then allowed to address the court and for reasons he explained he submitted that she had a just excuse for refusing to answer.  The justices then retired to consider the matter.  Mr Connolly's view was that a witness "must have a just excuse not to answer questions where she was being advised by a solicitor with his knowledge of the case, if to answer questions would have a tendency to expose the witness to a charge".  Mr Connolly got Mr Walker to confirm his view, and he then advised the justices "that the witness did have a right not to incriminate herself and where she was being advised by a solicitor not to answer questions on the grounds that it might incriminate her then that would amount to a just excuse".  Obviously if that is right the solicitor offering the advice, and not the justices, becomes the ultimate arbiter of whether there is just excuse.  The justices accepted Mr Connolly's advice, returned to court, and announced that the witness need not answer any questions where she was so advised by her solicitor.  The prosecuting solicitor then asked further questions, each of which, on legal advice, she refused to answer.  In his second witness statement Mr Bann does not really dispute the recollection of Mr Connolly and Mr Darby as to what happened after CB took the oath, so I am satisfied that, as alleged in the judicial review claim form, the justices did decided that "a witness need not answer questions on the grounds of self-incrimination".  
10.	The relief sought in the claim form is, in addition to a quashing order, a mandatory order requiring the justices to reconsider the claimant's application for the taking of a deposition and to allow the relevant police officers to be present at the proceedings.  That does not assist justices who have to deal with a witness who says that she has just excuse for not answering questions on the basis that she has been advised that if she does so she will be liable to incriminate herself.  To address that issue Mr Perry sought a second declaration, namely: 
"Where a witness who has been summonsed to give a deposition pursuant to Paragraph 4 of Schedule 3 to the Crime and Disorder Act 1998 refuses to answer questions on the ground of privilege against self-incrimination, that claim should be the subject of a proper investigation by the Justices in respect of each and every question for which it is claimed."
We granted leave to amend to seek that declaration also.  
11.	I turn therefore to the first of the two issues which the declarations seek to address, whether the proceedings should have been in open court.  
12.	I have already referred briefly to the legislative history of paragraph 4 of schedule 3 to the 1998 Act, but I will return now to the Magistrates' Courts Act 1980.  Section 4(1) provides that the functions of examining justices may be discharged by a single justice.  When one or more justices sit as examining justices they normally sit in open court (as required by section 4(2)), but they can restrict reporting (see section 8).  
13.	Section 121(1) of the Act provides that a magistrates' court shall not try an information summarily or hear a complaint except when composed of at least two justices, unless some enactment provides otherwise.  A similar restriction applies if the court is inquiring into the means of an offender (section 121(2)) and it must sit in a petty-sessional court-house or an occasional court-house (see section 121(3)).
14.	 Section 121(4) provides: 
"Subject to the provisions of any enactment to the contrary, where a magistrates' court is required by this section to sit in a petty-sessional or occasional court-house, it shall sit in open court."
15.	With those provisions in mind, I return to section 97 of the 1980 Act.  It reads:
"(1) Where a justice of the peace for any commission area is satisfied that any person in England or Wales is likely to be able to give material evidence, or produce any document or thing likely to be material evidence at the summary trial of an information or hearing of a complaint by a magistrates' court for that commission area and that that person will not voluntarily attend as a witness or will not voluntarily produce the document or thing, the justice shall issue a summons directed to that person requiring him to attend before the court at the time and place appointed in the summons to give evidence or to produce the document or thing"
If that section is read in the light of section 121, it is clear that the court before which the person is required to attend will be composed of at least two justices and sitting in a court-house in open court.  But section 97A is different.  It begins:
"(1) Subsection (2) below applies where a justice of the peace for any commission area is satisfied that -
(a) any person in England or Wales is likely to be able to make on behalf of the prosecutor a written statement containing material evidence, or produce on behalf of the prosecutor a document or other exhibit likely to be material evidence, for the purposes of proceedings before a magistrates' court inquiring into an offence as examining justices, 
(b) the person will not voluntarily make the statement or produce the document or other exhibit, and 
(c) the magistrates' court mentioned in paragraph (a) above is a court for the commission area concerned.  
(2) In such a case the justice shall issue a summons directed to that person requiring him to attend before a justice at the time and place appointed in the summons to have his evidence taken as a deposition or to produce the document or other exhibit."
The wording of subsection (2) is such as to enable the justice to require attendance before him or her at any reasonable time or place.  There is no statutory requirement that the venue should be a court, but there are, as Mr Perry submits, many reasons to conclude that almost always proceedings under section 97A or under paragraph 4 of schedule 3 to the 1998 Act should be in open court.  First of all, there is the general principle set out in Scott v Scott [1913] AC 417, R v Denbigh Justices ex parte Williams [1974] 1 QB 759, and now to be found in the European Convention on Human Rights, that justice should almost always be done in public, even if not everyone who wants to attend can be admitted.  That clearly applies to a justice sitting as an examining justice, and thus to proceedings under section 51 of the 1998 Act.  Proceedings under paragraph 4 of schedule 3 are ancillary to proceedings under section 51.  By paragraph 4(3) a justice is empowered to issue a warrant to arrest a witness and bring him before the justice at a time and place specified in the warrant.  It would be surprising if Parliament envisaged that being done anywhere except in open court.  Similarly, in paragraph 4(5) there is a power to issue a warrant to arrest the witness, and again that is a power which, in accordance with the general principle, should only be exercised in open court.  The same point can be made with even greater force in relation to paragraph 4(7) because that enables the justice to imprison or fine a person who without just excuse refuses to co-operate.  The exercise of that power involves, in effect, the determination of a criminal charge, and it would be contrary to principle, and to the Convention, for such a determination to be made in private.  
16.	Some assistance may also be gained from a consideration of paragraph 5.  If a deposition is obtained pursuant to paragraph 4 it can be read as evidence at the trial of the accused even if there is objection to that course "if the court considers it to be in the interests of justice so to order" (paragraph 5(4)).  Mr Perry submits, and I accept, that a court would be much more likely so to order if the deposition had been taken in open court.  
17.	Mr Perry also invited our attention to section 4 of the Criminal Justice (International Co-operation) Act 1990 which enables the Secretary of State to nominate a court to receive evidence requested by a foreign state.  Pursuant to that Act and to the Magistrates' Courts Act 1980 the Lord Chancellor has made the Magistrates' Courts (Criminal Justice (International Co-operation)) Rules 1991.  Paragraphs 6 to 9 of those rules make it clear that where a magistrates' court acts pursuant to the 1990 Act those proceedings are to take place in open court, subject to a power to exclude the public if the court considers that to be necessary in the interests of justice.  As Lord Bingham CJ said in R v Secretary of State for the Home Department ex parte Asif Ali Zardari, 11th March 1998 unreported, "the process envisaged by section 4 [of the 1990 Act] is not a trial; it is a process of gathering evidence.  The use to be made of the evidence so gathered is a matter for the requesting state".  Mr Perry submits that much the same can be said about paragraph 4 of schedule 3 to the 1998 Act, save that the decision as to the use to be made of the evidence gathered lies with the Crown Court.  
18.	In my judgment, proceedings under the 1990 Act do provide a much better analogy than the taking of a dying declaration, to which Mr Connolly referred, and for the reasons I have given he was wrong to regard as significant the fact that paragraph 4 of schedule 3 does not require the deposition to be taken at a designated court-house.  It was not a procedure which fell within the ambit of section 121 of the 1980 Act.  
19.	In a helpful witness statement Mr Robert Walker sets out his reasons for concluding that proceedings under paragraph 4 of schedule 3 to the 1998 Act are not in open court.  He points out that the justice or justices hearing such proceedings are not described as examining justices, that they do not have to decide whether to commit for trial, and if not examining justices they are outside the ambit of section 4(2) of the 1980 Act which requires examining justices to sit in open court.  But a justice dealing with a witness under paragraph 4 is exercising powers ancillary to section 51 of the 1998 Act which requires a magistrates' court to exercise one important function of examining justices, namely to commit for trial, and for the reasons already given it seems clear to me that a court exercising its powers under section 51 must sit in open court.  Whether that obligation arises directly as a result of section 4(2) of the 1980 Act or as a result of general common law I find it unnecessary to decide.  
20.	Mr Walker goes on to point out that under paragraph 4 of schedule 3 a deposition need not be taken at a court-house.  It could perhaps be taken at a hospital or some premises where adequate security could be provided.  I agree, but I do not regard that flexibility, which in reality could only properly be exercised in very unusual circumstances, as indicating that the proceedings are not normally to be in open court.  The special circumstances may be such that only very few can attend, as in the Denbigh case, where Lord Widgery CJ said at page 765, "the injunction to the presiding judge or magistrate is: do your best to enable the public to come in and see what is happening, having a proper common sense regard for the facilities available and the facility for keeping order, security and the like".  As Mr Walker recognises, if the court is open the media can be there, and unless some general or specific prohibition applies they can report the proceedings.  If the proceedings are not committal proceedings, and Mr Perry does not contend that they are, the inhibition in section 8 of the 1980 Act does not apply.  In my judgment, it is at least arguable that proceedings under paragraph 4 of schedule 3, because they were ancillary to proceedings under section 51 of the 1998 Act, do come within the ambit of section 8 of the 1980 Act, but if publicity would give rise to a substantial risk of prejudice to the administration of justice at the Crown Court then the justice dealing with the matters arising under paragraph 4 of schedule 3 could and should make an order under section 4(2) of the Contempt of Court Act 1981, probably requiring that publication of any report or proceedings before him or her be postponed until the conclusion of proceedings in the Crown Court.  
21.	Of course, as Mr Walker points out, the presence of large numbers in a court room may inhibit a reluctant witness, but that problem can be overcome by the exercise of the general power to restrict access in the interests of the administration of justice.  It is a power to be used sensitively and reluctantly, but it does exist (see Stones Justices Manual 2003 Volume 1 at 1-37).  
22.	Mr Walker also expressed some concern about the presence in court of Mr Teasdale, the solicitor who advised CB.  Once it is accepted, as in my view it should be accepted, that the proceedings should have been in open court, it follows that he could not be excluded, nor could other interested parties, such as the investigating police officers, but what should have been Mr Teasdale's role?  It was sensible for the prosecuting solicitor to give him advance notice of the questions he proposed to ask.  That should have enabled Mr Teasdale to discuss with his client in advance whether there was any valid reason for her not answering any of the questions, so his role could then be confined to being available to be further consulted if CB wanted to consult him and the justices agreed to that.  When she did claim that if she were to answer she might incriminate herself the justices were in my view right to allow Mr Teasdale to assist them to investigate that claim, and when they initially ruled against the witness they were right to hear Mr Teasdale on the question of what if any sanction should be imposed, pursuant to paragraph 4(7).  
23.	Mr Walker also raises the question of whether it is permissible for lawyers representing those sent for trial to be present during proceedings under paragraph 4 and if so whether they should be permitted to cross-examine the witness.  If, as I would hold, the proceedings are in open court they are plainly entitled to be present unless there is some special reason for excluding them.  As to cross-examination the position seems to me to be less clear, and may vary from case to case.  The starting point seems to me to be section 51(1).  The aim of that subsection is to cut out contested proceedings in the magistrates' court where the charge is one triable only on indictment.  So, for example, there can be no cross-examination there of the complainant where there is a charge of rape.  Logically it would be surprising if a corroborative witness, perhaps an eye-witness, could be cross-examined simply because he or she was so reluctant that the prosecution had to invoke paragraph 4 of schedule 3.  In my judgment, anyone seeking to cross-examine should normally be told to reserve cross-examination for the Crown Court.  But, as Mr Perry pointed out, there may be cases where the reluctant witness is likely to be unavailable at the Crown Court, or can perhaps be spared attendance there if one or two questions are asked.  In such a situation it seems to me that it would be open to the justice to permit cross-examination.  He would no doubt be mindful of the fact that if there was cross-examination in the magistrates' court and thereafter, at the Crown Court, there was objection to the deposition being read, at a time when it was considered impracticable or inappropriate for the witness to be called, the judge might find it easier to hold that it would be in the interests of justice for the deposition to be read if there had been some cross-examination already.  
24.	I therefore conclude that unless there are powerful reasons for deciding otherwise proceedings under paragraph 4 of schedule 3 should always be regarded as proceedings in open court, and for those reasons I would make the first declaration sought.
Self-incrimination 
25.	I turn now to the decision of the justices that CB need not answer any questions where she was advised by her solicitor that to do so might incriminate her, in other words that if she acted on the advice of her solicitor that amounted to a just excuse.  Mr Walker explains that he supported Mr Connolly's view that it was not necessary to investigate the claim, and they both say that at the hearing there was no suggestion that such an enquiry should be held.  Essentially Mr Walker's explanation is that any enquiry would be likely to breach legal professional privilege.  He points out that under rule 4A(1) of the Magistrates' Courts Rules 1981: 
"Where a person attends before a justice of the peace in pursuance of section 97A of the Act of 1980 or paragraph 4 of schedule 3 to the Act of 1998 the justices shall ...
(c) where that person refuses to have his evidence taken ... explain to him the consequences of so refusing without just excuse, and ask him to explain where he has so refused; and 
(d) cause a record of any such refusal to be made in writing."  
It is not expressly stated in the rule that the justice shall investigate any explanation that may be given, but in my judgment it goes without saying that a justice charged with taking a deposition cannot simply accept a claim to privilege without investigating it.  The question then becomes whether it is sufficient to ascertain that the claim is made on legal advice.  In my judgment, the answer must be in the negative.  The principle is neatly encapsulated in the 2003 edition of Blackstone's Criminal Practice, which states at paragraph F9.11 that before acceding to a claim to privilege the court should satisfy itself, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is a reasonable ground to apprehend real and appreciable danger to the witness with reference to the ordinary operation of the law in the ordinary course of things, and not a danger of an imaginary or insubstantial character.  The duty imposed by the court is non-delegable.  It cannot simply adopt the conclusion of the solicitor advising the witness whose conclusion may or may not be correct, and that does seem to be what happened in this case, which explains where I considered it appropriate to grant the second declaration sought.  Mr Perry referred us to Renworth Ltd v Stephansen [1996] 3 All ER 244, but I do not consider it necessary to cite from that civil case.
26.	In conclusion, I am therefore satisfied that the proceedings on 6th June 2003 were flawed.  They were not in open court when they should have been, and a claim to privilege on the grounds of self-incrimination was accepted without any proper investigation.  It follows that the deposition taken on that day was irregularly obtained, and there is nothing to prevent the prosecution, if so minded, from seeking to obtain a deposition from her in properly conducted proceedings pursuant to paragraph 4 of schedule 3.
27.	MR JUSTICE ROYCE:  I agree, and for the reasons given by my Lord I also would make both declarations sought.