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
		16th January 2003

1. MR JUSTICE HOOPER: This is an application for judicial review of a decision of District Judge Bopa Rai given on 8th May 2002. Permission to review that decision was given on paper by Ouseley J. At the conclusion of the hearing I told the parties that I intended to quash the decision, but that I was not minded to send the matter back to the Magistrates' Court. If I had done so, then there would have been even further delay in this matter. Mr Thomas, who appears for the Crown Prosecution Service and has been most helpful to me in this case, consulted his instructing solicitor and no objection is taken to this course.
2. I now give my reasons for the conclusion which I have reached. The district judge was asked to rule on two matters, only one of which I have considered during the course of argument, namely whether there had been a breach of the defendant's right to be tried within a reasonable time. With the benefit of hindsight, it is clear to me that the manner in which the proceedings were conducted by the legal representatives before the district judge was not very satisfactory. Although Mr De Mello now criticises the district judge for having relied on "facts" set out in the prosecution's reply to the defence submissions, at no stage do either of the legal representatives appear to have asked for oral evidence to be called to check the various statements of "fact" set out not only in that reply, but also in the summary of submissions made on behalf of the claimant.
3. The second unsatisfactory feature of the hearing -- again I attach no fault to the district judge -- is that a number of documents which have been made available to me were not made available to her. Indeed there are still a number of significant documents relating to the history of this case which are not available. In reply to the defence submissions prepared for the district judge the prosecution were unable to comment on various allegations because the police could not locate the file. A further example can be found at page 74 of the bundle, where the district judge dealing with one of the periods I shall be looking at later said that the prosecution file appears to have been mislaid. That file related to a period of something like a year between 19th February 2000 and 2nd February 2001.
4. I shall start with the unhappy chronology of this case, in the course of which I shall identify relevant documents which were not before the district judge, but before me, and documents which have not been provided either to her or to me.
5. On 2nd July 1999 it is alleged that the defendant drove dangerously. On 23rd July 1999 the defendant was arrested and charged with a serious offence involving threats to kill his wife. That offence was alleged to have occurred at the same time as the alleged dangerous driving. On 1st September the defendant was bailed to an address in Oxbridge Street, Burton. Thereafter, on 15th September 1999, the procedure to have him committed for trial on the threats to kill charges appears to have started. However, on 27th October 1999 the prosecution dropped those charges. The background to that can be found in the case summary at page 54, which appears to have been prepared before those charges were dropped. On 27th October the defendant therefore ceased to be on bail.
6. On 30th December informations were laid regarding the alleged dangerous driving and other less serious driving offences. Summonses were issued. We do not have a copy of those informations and/or summonses. What we do have, at page 56 of the bundle, is a computer produced summons which purports to be a re-issue of an earlier summons.
7. What seems clear, however, is that the address for the service of the summons was 41 Montague Road in Handsworth, the address which the defendant had given at the time of the incident on 2nd July and the address which he had given when arrested on 23rd July. It appears to be the address of his parents, and not the address, as one can see from other documents, of his wife and family. He, as I have said, had been bailed to another address.
8. Although we do not have the document, there seems to be general agreement that the first hearing date was set down for 21st February. That information, laid on 30th December, was some three days within the six month limit which both parties accepted applied in this case.
9. I should say at this stage, and do not propose to return to it, that thereafter a number of the documents, which are computer-generated, refer to the original information as having been laid on 7th January 2000. If that is right, the information would have been out of time. Those documents also suggest, no doubt wrongly in this respect, that the information was re-laid on a number of occasions. I shall assume, as do the parties, that the information was laid on 30th December.
10. We do not know what happened on 21st February. We can infer that the defendant did not appear. The assumption made before the district judge by the parties was that the summons had not been served for some reason or another. The likely reason is that he was not living at the address on the summons but, according to the defence chronology, at another address in Rea Road.
11. I am told that in the normal course of events when a defendant does not appear pursuant to a summons, the police or prosecuting authority is informed so that action can be taken. There is no evidence that the Magistrates' Court did inform either the prosecution authority or the police and there is no evidence as to what happened if they were informed. Given the absence of the files, to which I have already referred, we just do not know what happened for the next year. No steps appear to have been taken to find the defendant, albeit that on two occasions he was arrested (March and September 2000) for unconnected matters. The whole case had gone to sleep. It came awake, to a certain extent at least, on 2nd February 2001.
12. I now refer to documents which were not before the district judge, which I have labelled 59A and onwards. 59A states that an information had been laid that day before the justices in respect of the dangerous driving. This, it appears, cannot be right. Under the address for service are the words: "re-issued on 02/02/2001". From that one reaches the conclusion that someone took steps on that day to try and revive the case. The address for service is the address which had been used 14 months earlier in December of 1999: namely, 41 Montague Road. The document requires the attendance of the defendant on Thursday 8th March 2001.
13. I now turn to another document which was not before the district judge, but was produced to me today by Mr Thomas, along with all the other documents to which I have given the number 59 and the addition of a letter. This is 59G. It shows that the summons was sent by recorded mail on 7th February, five days after it had been "re-issued", and was returned to the Birmingham Magistrates' Court with these words: "this person does not live here anymore". That appears to have been written by the postman, whose badge number appears on the recorded delivery sticker. The date on which the postman appears to have received that information is 23rd February 2001. Again, we do not know what steps, if any, the Magistrates' Court took to draw to the attention of the police or the Crown Prosecution Service what had happened.
14. On 16th March 2001 there was a further summons issued. These documents, which I have labelled 59H and onwards, were not before the district judge and were produced by Mr Thomas to me today. The address for service on this document is the same address: 41 Montague Road. Someone decided that the summons should be sent again and should be sent to the address at which, according to the postman at least, the defendant did not live.
15. I now turn to another area in which there are now no documents available. What happened on the return date for that summons? The date scheduled for the hearing, as one can see at 59H, was 27th April 2001. The defendant did not appear on 27th April, and there was no document either before me or the district judge to indicate what information was given to the court on that day about the summons and the failure of the defendant to attend. Once again, the address for service is 41 Montague Road.
16. On 23rd May the defendant was arrested in connection with other matters. On 1st June someone decided that the summons ought to be re-issued again. This was now the fourth time the summons had been issued or re-issued. It was sent by post from the Magistrates' Court on 27th June, 26 days later. A copy of the document can be found at page 56. It shows, again, the same address for service: 41 Montague Road. The return date is set for 10th July 2001. We know in part what happened to this document because before the district judge, and again before me, was the document at page 63 of the bundle. The bottom half of that document is a photocopy of the envelope posted on 27th June, and someone has written on the envelope "away on holiday, back in October". The defendant had, in fact, gone abroad in either June or early July.
17. On receipt of that someone in the Magistrates' Court decided to do something and the case was adjourned to 24th July. However, the notification of the adjournment was sent to the same address as all the other documents, Montague Road. On 20th July, after the notification of the date of 24th July had been posted to Montague Road, there was a telephone message from a person saying that she was the sister of the claimant. She said that he was out of the country for about two months because his grandfather was ill. She was not accepting, so it seems to me, that he necessarily lived there, but she was being helpful by saying where he was.
18. On 24th July (finally, one could say) a warrant for the defendant's arrest was issued, not backed for bail. He returned to the United Kingdom from Pakistan on 11th September 2001 and went to live at an address in another part of Birmingham. On 19th January 2002 he was arrested in connection with some other matter. Finally the paperwork caught up with him on 21st January 2002 when he was arrested on the warrant. Shortly thereafter the solicitors for the defendant indicated their intention to raise the pre-trial procedural issues with which the district judge was concerned: namely, breach of article 6 and abuse of process.
19. The hearing for that took place in April 2002. The decision was issued on 8th May 2002. The application for judicial review was made on 22nd July. Permission was granted on 9th September. Thereafter, it has taken until today to have this case listed.
20. One other matter to note is that the prosecution, at some point, decided that they would seek trial by jury for this alleged offence of dangerous driving. That explains why in the bundle, at pages 22 and 23, one finds the documents which come into existence from the CPS when they are seeking jury trial. Those two documents caused me considerable confusion at the outset of these proceedings. I did not see how they fitted into the history of this matter. It was only towards the end that I realised that they came into existence at a time when the prosecution decided to seek jury trial and that is probably in 2002.
21. If the Magistrates' Court had acceded to that application for jury trial, then one could say that the trial before the jury, but for this application, would have taken place either in late summer or early autumn of 2002. It follows that what the district judge was being asked in connection with article 6 was whether or not a delay from 23rd July 1999, which she found to be the relevant starting date, through to some time in the summer or early autumn 2002, would prevent this claimant from having a trial within a reasonable time. Although I will be making comments about the reasoning which the district judge adopted, I do so very conscious of the fact that, for no fault of hers, she did not have all the information that I have before me today, which it is agreed I can incorporate into this judgment.
22. In the written defence submissions prepared for the district judge it was submitted that the defendant was not at all to blame for the failure to serve the summonses. Whether that be right or wrong, in the absence of any evidence to the contrary in the circumstances of this case, that was an assumption which the district judge had to and did apparently make. She did not put any blame on the defendant. To be fair to the defendant, he would have been entitled to assume, certainly by early 2000, that the allegation of dangerous driving had been abandoned.
23. The district judge divided the time up into three separate periods. She started with the period 23rd July to the laying of the information on 30th December 1999 which, as she said, was within the time limit of six months. She said that the prosecution were actively pursuing the case against the defendant. Where precisely she obtained that information I am not sure. There is no file relating to that period.
24. She then takes the period from 19th February 2000 to the re-issue of the summonses on 2nd February 2001. She notes, as I have already mentioned, that the prosecution file had been mislaid, and that the prosecution accept that there was no activity during this period in relation to the defendant's case. The prosecution accepted, as she states, that the conduct of the case fell below the reasonable standard. She concluded that for this period there was delay by the prosecution.
25. I turn to her third period, which is from 2nd February 2001 to the execution of the warrant on 21st January 2002. She writes:

"During this period summonses were reissued on two separate occasions and the prosecution were consciously (sic) trying to locate and serve the summonses and secure the defendant's attendance at court."

I have obviously read "consciously trying to locate" as "conscientiously trying to locate".

26. It is accepted by Mr Thomas that there was no evidence before the district judge that the prosecution were conscientiously trying to do this during, at least, the period up to 24th July. The district judge may have been referring to the attempts by the Magistrates' Court to deal with the matter by re-issuing the summonses on 2nd February, 16th March, and 1st June, all to the same address. There is nothing on the papers to suggest that the staff in the Magistrates' Court had taken steps to alert the prosecution or the police of what was happening, nor is there anything to suggest that the police or prosecution were saying, "What on earth has happened to the case of Ahmed? It seems to have got lost". As I have indicated, the first time that the prosecution became, on the papers, involved in this matter is on 24th July 2001, when they seek and obtain the issue of a warrant for the claimant's arrest.
27. It seems to me to follow, first of all, that the prosecution were not doing that which the district judge said they were doing. If she had known what the documents showed about what the Magistrates' Court had been doing, she might not have been so generous. One cannot properly attach blame to the claimant for not raising this before the district judge because the relevant documents were documents which were in the possession of the Magistrates' Court.
28. She then goes on to say that during this period the prosecution did not cause the delay. Certainly, for the first six months at least, some part of the delay must be attributable to someone connected with the investigation or trial of this matter, whether it be the police, the CPS or the Magistrates' Court. She says that the claimant cannot lay the blame at the prosecution's door for the delay during this period. Again, with all respect to her, it seems to me that an inevitable consequence of the history of what happened in those first six months of 2001 is that someone was at fault for not taking urgent steps to bring this case to court, given that the summonses had first been issued in late 1999 and the offences were allegedly committed in July of that year.
29. The district judges concludes that these delays have not served to prevent a trial of the defendant's case within a reasonable time. I have considerable sympathy with the district judge, faced with a difficult case, a lack of information and a number of difficult authorities on the issue. In my judgment she failed to consider the period overall, from 23rd July to the anticipated trial date which would, as I say, have been some time in the summer or autumn of 2002. It is not for me to substitute my decision for hers, but a delay of something like three years for the trial of a very simple, uncomplicated case of dangerous driving is certainly unusual.
30. Whether or not the prosecution or the court is responsible for the delay is a factor to be taken into account, but it is not, as Mr Thomas quite rightly concedes, decisive of the issue. The issue is: has the trial taken place within a reasonable time? Of course, any fault by the defendant, such as escaping and making himself unavailable, is a very important factor to take into account. However, that did not apply here.
31. By examining the periods in the way that she did, and on two occasions finding that the prosecution did not cause the delay, she, in my respectful judgment, failed to consider the whole of this period of something like three years. What conclusions she would have reached about those three years is not for me to say. That would have been a matter for her or for some other district judge who re-considered the issue. But for the reasons I have mentioned earlier, I do not propose to send the matter back. There has been by now a very significant delay and I quash the order, but do not send the case back.
32. I am grateful to counsel for the help we have had today.
33. MR DE MELLO: My Lord, the claimant is legally aided. It is the CLS certificate.
34. MR JUSTICE HOOPER: You can have legal aid taxation.
35. MR DE MELLO: I ask for my costs in the normal way. It is a matter for your Lordship.
36. MR JUSTICE HOOPER: I think the trouble with any application for costs against the Crown Prosecution Service is that I have exercised the degree --
37. MR DE MELLO: I have made a point.
38. MR JUSTICE HOOPER: Your costs will be taxed in the normal way. Thank you all very much.