CO/3987/2002 
Neutral Citation Number: [2003] EWHC 64 Admin
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Friday, 17th January 2003
 B E F O R E:

MR JUSTICE HOOPER 
 
 - - - - - - -

THE DEPARTMENT OF WORKS AND PENSIONS
(CLAIMANT)

-v- 

SARAH JANE BARTON-HARVEY
(DEFENDANT) 
 - - - - - - -
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)
 - - - - - - -
STEPHEN EARNSHAW (instructed by Office of the Solicitor, Department of Works and Pensions, Litigation Division, New Court, 48 Carey Street, London, WC2A 2LS) appeared on behalf of the CLAIMANT
The DEFENDANT was not represented and did not appear
 - - - - - - -
J U D G M E N T 
(As approved by the Court) 
 - - - - - - -
Crown copyright©

1.	MR JUSTICE HOOPER:  This is an appeal by way of case stated from a decision of a Magistrates' Court sitting at Chippenham.  The appellant is the Department of Works and Pensions.  The respondent is neither here nor represented.  According to the stated case, on 9th December 1999 Sarah Jane Barton-Harvey, the respondent, made a false representation for the purposes of obtaining benefits.  It is said that she did the same thing again on 13th January 2000.  
2.	The history of the case is not a happy one, as the stated case shows.  The proceedings seem to have started some time at the end of 2000.  They were then adjourned to 23rd January 2001.  They were further adjourned to 20th February 2001 as the defendant had only received the summons on the previous day and was unable to make travel arrangements.  On 20th February 2001 the defendant did not appear and a warrant backed for bail was issued.  That was reissued a month later.  On 17th April 2001 the respondent did appear, but there were no papers available.  On 8th May 2001 she did not appear as she was in labour.  On 3rd July 2001 she contacted the court requesting a further adjournment because of difficulties following the birth.  On 7th August 2001 the defendant appeared, and no doubt also the prosecution, but the court was unable to deal with the case due to lack of time, and it was adjourned to 2nd October.  On 2nd October it was adjourned to 13th November.  On 13th November the second warrant was issued, not backed for bail, and the respondent was arrested and brought before the court at 9.30 on that morning.  The arrest was carried out by a constable.  
3.	The Magistrates' Court were able to find a duty solicitor for the defendant, but there was no prosecutor.  This is not surprising.  The Department's prosecuting department is based in Cardiff.  Given that the department would not have known about the arrest until during the morning and given other commitments, it was impossible for any qualified member to get to the court to deal with the case.  
4.	There was one person available to help, a Mr Brown, an investigator for the Department.  Mr Brown sought to get a local solicitor involved and the case was put back to 11.20.  Mr Brown told the court that he would only be able to get a lawyer into court later that day.  As the stated case shows, the magistrates concluded:
"We were not persuaded by Mr Brown's evidence that there would definitely be a prosecutor in court later on that day."
5.	The magistrates concluded, in these circumstances, that:
"1. The respondent had been in custody for a number of hours by the time the case was called, and that it was not appropriate for her to continue to remain in custody for a further unknown period given her personal circumstances [a reference to her young children]. 
"2. The monies were being repaid to the appellant regularly by deduction from her benefit.
"3. We had already put the case back in the list to enable time for a prosecutor to attend until 11.20 am ... 
"4. It was not in the interests of justice, and unfair to the respondent to further delay this matter, and that the case should rightly be dismissed for want of prosecution at that stage." 
6.	It seems to me that that was not the right conclusion to reach in a case which had not been listed for hearing that day but which had come before the magistrates because a police officer had found the defendant and brought her before the court.  Quite different considerations would obviously apply if the prosecution was being brought by the Crown Prosecution Service, who would normally have lawyers in the vicinity to deal with it.  In my judgment, the only proper course on the facts of this case, and bearing in mind the conclusions which the magistrates reached, would have been to release the defendant on bail and adjourn the case for the prosecution to attend at a later date.  
7.	Given what Mr Earnshaw has said about the likely outcome of this case, I have decided that the proper course is to allow the appeal for the reasons I have given and not order the case to be returned to the Magistrates' Court.  
8.	The answer is "No" to the question in the stated case: "Whether the justices were right to dismiss the information for want of prosecution at that stage, or at all, without giving the appellant further time to arrange representation."  
9.	MR EARNSHAW:  I do not know whether -- it is at your Lordship's discretion, the question of costs.  No consideration of costs against Mrs Barton-Harvey. 
10.	MR JUSTICE HOOPER:  Who would you get the costs from?  
11.	MR EARNSHAW:  It would have to be the justices at the Chippenham Magistrates' Court, which may not even necessarily be possible. 
12.	MR JUSTICE HOOPER:  No.  Thank you very much.