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
		19 March 2003

1. MR JUSTICE MITCHELL: Before the court are two applications for judicial review: one on behalf of Gary Walden; the other on behalf of Andrew Stern. In each case, permission to apply was granted by the single judge on the papers. These claimants challenge separate decisions of the magistrates sitting at Highbury Corner Magistrates' Court, to grant in each case an opposed application by the Crown Prosecution Service for an adjournment of proceedings for an offence of being in charge of a motor vehicle, having consumed excess alcohol, in the case of Mr Walden, and for driving a motor vehicle, having consumed excess alcohol, in the case of Mr Stern.
2. It is necessary to say just a little about the background. Dealing first with Mr Walden, he was arrested for being in charge of a motor vehicle, in the circumstances identified, on 10th November 2001. He was charged the following day. On 13th November 2001, he appeared before the Highbury Corner Magistrates' Court and entered a plea of not guilty. The case was adjourned until 3rd January to await the decision of this court in various cases: DPP v Brown; DPP v Teixeira [2001] Admin 931; and a third case, DPP v Memery (The Times July 9, 2002). The next relevant date is 9th July 2002, when Mr Walden's case was listed for a pre-trial review and the trial date was fixed for 3rd September 2002.
3. It is convenient to rehearse Mr Stern's position at this juncture. He was arrested and charged for driving with excess alcohol on 22nd April 2001. On 27th April 2001 he appeared before the justices at Highbury Corner Magistrates' Court. He indicated that he would be pleading not guilty pending the outcome of those same cases. So it was that Mr Stern, along with Mr Walden and along, so I have been told this morning, with many other defendants in a similar position, appeared at court for a pre-trial review on 9th July. His date for trial was fixed for 26th September 2002.
4. On the 3rd September 2002, Mr Walden turned up for his trial and the case was listed for trial. The trial did not proceed because no prosecution witness on the list of witnesses, a collection of police officers, appeared. The inference was that they had not been warned. The prosecution accordingly applied for an adjournment. It was conceded that no attempt had been made to warn the witnesses. No explanation for the absence of any attempt was to be found on the file, and no explanation was forthcoming. Nonetheless, that application was made and, unsurprisingly, was opposed by the claimant's advocate.
5. The applicant relied, if I may say so, without wishing to be too disparaging, on some of the old chestnuts about the antiquity of the matter. As matter of fact, of course, that is true; but is readily accepted that the antiquity of the matter was largely attributable to the wait by this claimant and others for these various decisions to which I have referred. Reliance was properly placed upon the fact that the only reason for the trial not proceeding that day was simply because of what appeared to be an inexcusable error on behalf of the Crown Prosecution Service, or somewhere in the arrangements that are permanently in place for the warning of witnesses.
6. The justices, apparently, asked to be told in outline the facts of the allegation, as they thought they ought to be aware of allegations when making their decision. Those facts were outlined. The justices then granted the adjournment, giving as their reason the seriousness of the allegation faced by the claimant. No one, of course, pretends for one moment that offences of this nature are not serious; they clearly are, and in this particular case, the reading was three times above the legal limit. Another reason given by the magistrates was that this was only the first time that the matter had been listed for trial. So much for Mr Walden on 3rd September.
7. Mr Stern turned up for his trial on 26th September and he was confronted by precisely the same circumstances; again, no prosecution witness appeared, again all police officers, again no explanation was advanced. The clear inference was that they had not been warned, and no explanation for that failure was forthcoming. Accordingly, the prosecution sought an adjournment and the same sort of considerations were relied upon in the objections advanced to that application. In Mr Stern's case, there was a further ground of objection very properly put forward: during the current proceedings, that is to say during the period since his arrest and charging, he had become seriously ill and was receiving treatment. Whatever stress and anxiety stemmed from the treatment, it was accentuated by the continuing stress and anxiety resulting from these proceedings continuing to hang over him.
8. The justices asked again for an outline of the facts of the allegation before they gave their decision on the application to adjourn -- here the reading was a little lower but still sufficiently over the limit -- and in this case, the justices granted the adjournment without giving any reasons at all.
9. The position today is this: in a word, no one is any the wiser. No evidence has been filed on behalf of the defendant court. An acknowledgment of service was lodged by the defendant court in each case, but no submissions were made. There has been no response either from the Crown Prosecution Service, who again had been served in each case as an interested party in accordance with the relevant practice direction. Neither the justices, nor the Crown Prosecution Service, are represented at today's hearing. It follows that in each case there is before this court no explanation for why the witnesses were not warned, no explanation for the inability of the prosecutor to explain to the magistrates the lack of a warning, and in the case of Mr Stern, no explanation for the failure to give any reasons for the granting of an adjournment in those particular circumstances.
10. There are in the authorities a number of judicial observations on the topic of adjournments in Magistrates' Courts. The starting point is section 10(1) of the Magistrates' Court Act 1980:

"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."

11. Now, the first case to which my attention was invited is R v Abedare Justices, ex parte DPP [1990] 155JP 324. The relevant observations are to be found in the judgment of Bingham LJ, as he then was. At the start of his judgment, having said that he wished "to make two things quite plain", he continued:

"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 for criminal proceedings. It has been said time and time again that delays in the administration of justice are a scandal, and they are the more scandalous when it is criminal proceedings with which a court is concerned."

12. Bingham LJ's judgment continues, and he identifies four features of the case that persuaded him that in all the circumstances it was appropriate for this court to intervene. The first two features are very much confined to and peculiar to the facts of that particular case. Accordingly, I turn to the third and fourth features, or factors. Bingham LJ said, at page 331(G):

"The third factor which impresses me is that I think the justices failed to pay regard to the interests of justice as they affected both side. They were conscious, and rightly conscious, of the defendant's desire that the, matter alleged against him should be cleared up one way or the other and were no doubt conscious of the fact that he had had this matter hanging over him for some time and that another adjournment would prolong his uncertainty and concern. On the other hand, of course, there was the interest of the prosecution, representing the public, that a charge properly preferred against the defendant should be the subject of proper adjudication. It is, of course, right that those about whose guilt there is any doubt should be acquitted, but it is equally in the interests of society that those against whom true allegations are made should be convicted. I think that, in their consideration of this matter, the justices perhaps failed to pay proper regard to the undesirable consequence of refusing an adjournment when, as they claim they understood, the result would be that the prosecution would thereupon collapse.

"The fourth matter to which I pay attention is that the prosecution in this case were in no way at fault."

And at the conclusion of his judgment Bingham LJ refers again to that point. He said this:

"The justices, lacking the assistance given in the Swansea Justices case to which my Lord has referred, fell into error in failing to take full account of the fact that the prosecution were not the authors of their own misfortune."

13. The next case is R v Hereford Magistrates' Court, ex parte Rowlands [1998] QB 110. The relevant passage begins at page 127(G). Again, the judgment is that of Bingham LJ, now Chief Justice. The earlier case was decided in 1990 and this case was decided in 1997. Lord Bingham 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 be 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. Any defendant who is guilty of deliberately seeking to postpone a trial without good reason has no cause for complaint if his application for an adjournment is refused: see, for example, Reg. v Macclesfield Justices, Ex parte Jones [1983] R.T.R. 143. In deciding whether to grant an adjournment justices will bear in mind that they have a responsibility for ensuring, so far as possible, that summary justice is speedy justice. This is not a matter of mere administrative convenience, although efficient administration and economy are in themselves very desirable ends. Delays in bringing summary charges to trial are, unfortunately, not infrequent; last minute adjournments deprive other defendants of the opportunity of speedy trials when recollections are fresh. The difficulties adjournments cause give rise to a proper sense of frustration in justices confronted with frequent such applications: see Ex parte Rowles [1994] R.T.R. 40, 45 E-F per Farquharson LJ. It is important that in those cases where this court is compelled to intervene, its ruling should not be seen to be inhibiting justices from refusing repeated application for adjournments where it is appropriate to do so."

14. My attention has also been invited to the decision of this court on 13th October 1993 in R v Kingston upon Thames Justices, ex parte Martin. The court number is CO/2395/93, and the court as constituted consisted of Simon Brown LJ and Buckley J. During the course of giving his judgment, Simon Brown LJ identified a number of factors which were relevant to a successful judicial review application on this ground. I am not going to add to the length of this judgment by reading the passage, but against that background of principle, the question arises: is there in each of these cases a very clear ground for interfering with the decision to grant an adjournment, a decision with which, I remind myself, any appellant caught will be very slow to interfere?
15. 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.
16. 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.
17. 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. Bingham LJ's words in the Abedare Justices case are apt; I repeat:

"It has been said time and time again that delays in the administration of justice are a scandal, and they are the more scandalous when it is criminal proceedings with which a court is concerned."

18. With some hesitation, and for the reasons I have given, I have come to the conclusion, in the absence of any representations made on behalf either of the justices or the Crown Prosecution Service, that it is in each of these cases appropriate for the court to interfere. In my judgment, each of these applications for an adjournment should have been refused, with the inevitable consequence that each case would have been dismissed. The order granting the adjournment will accordingly be quashed, as will the decision to refuse to dismiss each of these cases. I trust, that in the light of my conclusion, the Crown Prosecution Service will consider the position and act accordingly, in a way that reflects the views this court has expressed.
19. Now, do you want me to add anything else?
20. MR CORRE: My Lord, no, thank you. Would your Lordship hear an application for costs?
21. MR JUSTICE MITCHELL: Well, I expect you are entitled to them, are you not?
22. MR CORRE: Yes. The position is a little bit complicated in that Mr Stern's case is privately funded, and Mr Walden's case is publicly funded. So may I ask for order in respect of Mr Stern for costs from central funds, and in the case of Mr Walden for public funding assessment?
23. MR JUSTICE MITCHELL: Yes.
24. MR CORRE: If it assists your Lordship and the associate now, I do have a calculation as to Mr Stern's costs.
25. MR JUSTICE MITCHELL: In Mr Walden's case, we need the certificate for the court file.
26. MR CORRE: Yes, I am sure that is available.
27. MR JUSTICE MITCHELL: In this case, it will be subject to the usual assessment and, no doubt, in the fullness of time he will be paid his costs.
28. MR CORRE: I am most grateful.