England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		6 October 2005

1. LORD JUSTICE SCOTT BAKER: There is before the court an application for judicial review of two decisions of District Judge Susan Williams sitting in the West London Youth Court sitting on 22nd March 2005.
2. The first is a decision to refuse to allow a screen to be used when an undercover police officer known as Billy was to give evidence in order to protect him from being identified. Second is a decision refusing to adjourn the proceedings so that legal advice could be taken with a view to making an application for judicial review of the first decision.
3. Reda Nasser, a youth, was charged with offences relating to the supply of class A and C controlled drugs. The Crown's case was that purchases of the drugs had been made by Billy on the 15th November 2004. The transaction was recorded by a video camera secreted covertly on Billy. Billy was on an ongoing basis involved in a number of other drug cases within an operation to which we shall refer to as "N".
4. The case has a history which I should describe briefly. N was arrested in mid-December and brought before the West London Youth Court on 18th December when he was remanded on bail. On 29th December he pleaded not guilty and on 10th January the case was fixed for trial on 8th March. Only two witnesses were required: Billy and the officer in charge of the case.
5. On 25th January he was remanded in custody for breach of his bail. On the 31st January the prosecution made an application for Billy's evidence to be given from behind a screen. That application was served on the court and on that same day N was once again released on bail.
6. On 7th February, the screen application, which was opposed by the defence, was refused. The Crown Prosecution Service was told that it could reapply on the day of the trial when the necessity and reasoning behind the application should be clearer. On 8th March the case was due to be tried but had to be adjourned because Billy was unexpectedly detained in another court.
7. The defence on that occasion confirmed that the whole of the evidence was agreed, save for the evidence of Billy, and the case was refixed for the 16th March.
8. On 16th March there was an application argument for the screen and this was resisted by the defence. It is necessary to piece together from the notes that are available what was said to the learned district judge.
9. It was made clear to the judge that she had a discretion in common law and that the principles for exercising it were set out in the case of R v Taylor [1995] Crim LR 253. The clerk's note of what happened is to be found at divider 17 of the bundle. The prosecution are there recorded as telling the district judge that there was an undercover officer operation called N and that Billy was the relevant officer, that he was the only officer doing this and that he was involved in some 30 prosecutions.
10. The court clerk also recorded that the Metropolitan Police stated that there were a limited number of suitable officers. If identified, Billy would not be used again and would be in danger in any Metropolitan Police area. His evidence would be used in high profile trials on indictment; some were still waiting to be tried and that was the basis for the application for screens and there is also recorded a note that the judge was invited to consider the potential for unfairness.
11. The court clerk's note continues with a note of what the defence said; that it was a renewed application, that the application earlier had not been completed, that the police officer and the defendant had already met face to face. The question was: was the defendant concerned with supply? There would be no press or public, the purpose of the screen was to put a barrier between the defendant and the officer. The judge was reminded that it was a matter for her discretion but that it was submitted that screens were necessary.
12. The judge is recorded as saying that she needed to decide if the witness needed to be protected. The notes of what she said continues:

"I understand why police want to keep identity confidential - he wants to use the name 'Billy' and give evidence behind a screen.

"He will give important evidence.

"I need to conduct a balance."

13. The note also records that the judge decided to sit in Court 5, that the Youth Court was not open to the public and differed in that respect from the Crown Court. It is noted that N had met Billy before.
14. Some further assistance in how matters proceeded is to be obtained from a note that prosecuting counsel made shortly after the hearing. It is plain that he used information from a statement that was in his possession from Jim Connolly. Jim Connolly's statement, which is quite short, reads as follows:

"In the Metropolitan Police District I am responsible for the deployment of Test Purchase officers on a daily basis. The vast majority of these operations involve the supply of Class A drugs at street dealer level. Intelligence shows that dealers and their associates will migrate from one area to another in order to frustrate Police operations against them. Criminals and those involved with the purchase and supply of drugs will endeavour to identify Test Purchase Officers for their future reference. Dealing in Class A drugs is a highly lucrative trade even at street level with profits ranging as high as £500 to £2,000 per day. Taken together with average minimum sentences of 3 years imprisonment, those involved have much to lose.

"The Test Purchase officer, 'Billy', was recently deployed on Kensington and Chelsea Borough as part of Operation [N]. This particular officer has worked in an undercover role in the West London area including previously on this Borough, on several recent occasions. His current normal Police duties may also require him to operate in the same vicinity.

"The pseudonym 'Billy' is in fact an authorised change of first name to protect the officer following these recent deployments.

"It should be noted that he was the only Test Purchaser employed successfully in the course of this operation and as a consequence is responsible for the arrest of over thirty persons involved in street drug supply. He is a distinctive individual and as the majority of the subjects detained originate or reside in the right geographical area of the operation and are linked by association, it is likely that they will realise the impact of his solitary role.

"The number of Test Purchase officers available for deployment in the field of purchasing drugs is limited.

"The number of operations targeting this problem increases year on year in line with the increased drug abuse prevalent in society in general.

"As a consequence it is highly likely that I will be required to re-deploy 'Billy' in the same area or in adjacent boroughs in the near feature.

"Without the use of screens and the other measures described there is a strong possibility of future compromise that could endanger the safety of the officer and his colleagues."

15. Counsel says in his note that he emphasised the criteria in the R v Taylor and reiterated R v Mazen Itani: R v Tarique Shah [2003] EWCA Crim 935. And also that limited argument was made by the defence about unfairness, which he answered by saying that although N had seen Billy before during the operation it was in a completely different context and unlikely to lead to recall. Seeing him in court over a period of time in different clothing and in a different environment was an entirely different kettle of fish.
16. He summarised the judge's rulings in his note in divider 7, the second page, in these terms:

"(1) Use of screens exceptional on all the authorities.

"(2) Youth Court was a closed court and she could exclude everyone except court personnel, lawyers and the defendant.

"(3) Defendant had already seen Billy - albeit in a different context.

"(4) While accepted Crown arguments about difficulties and dangers in using undercover officers still not a case for screens.

"(5) Unfair for screens in all the circumstances."

17. On 15th July, after the judicial review proceedings had been commenced and four months after her decision, the judge produced a witness statement explaining her decision. I would add that it is no criticism of the judge that this was produced four months after the event. The Crown was dilatory in commencing judicial review proceedings.
18. The judge rightly said that she had to determine the application on its individual merits and was not bound by what any other district judge might have done in other cases. She said that she had taken the following factors into account in reaching her decision. I quote from paragraph 6 of her note:

"i) as a tribunal of fact and law, I could satisfy myself that 'Billy' was in fact a police officer and what his true identity was by looking at his warrant card; that evidence need not be disclosed to the defendant;

"ii) the Youth Court is a closed court not open to the general public and, therefore, capable of being distinguished from the Crown Court which has a public gallery;

"iii) I recognised the fact that an undercover officer is a scarce and valuable police resource, whose identity needs to be protected to enable him to carry out his duties effectively;

"iv) by virtue of the charges, the defendant had met this officer and seen him on more than one occasion;

"v) the drugs transactions involving the defendant have been video recorded and that recording was to be played to the court, giving the defendant a further opportunity to see the officer on that video during the course of the trial;

"vi) I was prepared to close the court to all persons except the defendant, immediate court staff and the parties' lawyers, while the officer was giving evidence and during the playing of the video recording;

"vii) it was desirable in the interests of a fair trial for proceedings to be held openly if at all possible;

"viii) The Crown were not able to identify any immediate or specific threat to this officer should a screen not be used; the only threat to his safety, as explained to me, was that it could, generally, cause a threat to this officer's safety if his identity were to be revealed to others, despite the fact that the defendant had already seen him;

"ix) I did consider the case of R v Taylor and Crabb [1995] Crim LR 253 and apply it to the facts of the case before me;

"x) Reda Nasser had been arrested back in December 2004, some 3 months before the date of his trial. It is in the interests of justice for a young person to be tried as swiftly as possible. Adjourning a trial before the Youth Court pending an application for judicial review to the Administrative Court on a point of law is a practice, which has been frowned upon by that court;

"xi) I did not consider that the absence of a screen caused any immediate or direct threat to the officer or any threat sufficient to justify the granting of the Crown's application."

19. If indeed the judge did take matters 4 and 5 into account in making her decision, and the other notes do not unequivocally indicate that it was so, she was in error in two ways. First, the defendant had only seen Billy in person on one previous occasion, rather than several. Secondly, the video recording, it is now common ground, does not show Billy's face. Thus, (1) the defendant had had less previous opportunity to remember Billy than the judge believed and, (2) showing the video at the trial was not going to assist the defendant at all in identifying Billy.
20. Therefore, it is submitted the judge seriously underestimated the detrimental effect of the defendant being able to see Billy over the extended period of evidence and if he wished to memorise his features, the judge said, and I quote from paragraph 11 of her note:

"11. Arrangements are regularly made at this court for vulnerable witnesses to enter a court room without coming into contact with the defendant or any of his or her companions. I would never have countenanced the officer being exposed to any such risk.

"12. I did not consider that there were real grounds for being fearful of the consequences to 'Billy's' safety on the basis of the information with which I had been provided ...

"14. The defendant had met this man and, therefore, could recognise him in any event. The nature of the video recorded evidence would afford him a further opportunity to see this man, when the evidence was played to the court. Any possible danger to the witness had already been caused and did not seem to me to be exacerbated unduly by refusing the use of a screen."

21. In my judgment, the judge's errors in the two respects I have mentioned seriously flawed her assessment of the balancing exercise that she was required to carry out. The picture that I have is that the judge regrettably had a good deal less help from counsel, and in particular counsel for the prosecution, than she was entitled to expect.
22. What were the considerations that she was required to take into account in exercising her discretion? I quote from paragraph 16 of the judgment of the Lord Chief Justice in R v Mazen Itani and Tarique Shah in which he cites what Evans LJ had said in R v Taylor with approval:

"We would express our conclusions on the law in the following terms. Mr Rawley [on behalf of the appellant] asserts a fundamental right of a defendant to see and to know the identity of his accusers, including witnesses for the prosecution brought against him. By that, Mr Rawley does not mean that there are no exceptions, because, as already indicated, he concedes that cases of national security might be one. However, in so far as he submits that it is a fundamental right, in the sense that it is one which should only be denied to a defendant in rare and exceptional circumstances, then that is a submission with which we can and do agree. Whether or not in a particular case the exception should be made is preeminently a matter for the exercise of discretion by the trial judge. Apart from all other considerations it is a question which has to be decided in the course of the trial when, or possibly before, the witnesses come to the witness-box, and it may be at a stage when the relatively little evidence has been given.

"Since we must regard this as an exercise of discretion, the next consideration is, what factors are or may be relevant to that exercise of discretion by the trial judge? We would venture to state them, having had the benefit of Mr Rawley's and Mr Spens' [counsel for the Crown] submissions in the present case, in the following terms. First and foremost, there must be real grounds for being fearful of the consequences if the evidence is given and the identity of the witness is revealed. In practical terms and in most cases it may well be sufficient to draw a parallel with the statutory provisions of section 23(3)(b) of the Criminal Justice Act 1998. That provides for statements to be admissible in evidence when the person who made it does not give oral evidence through fear. However, we think it worth noting that in principle it may not be necessary for the witness himself or herself to be fearful, or it may not be the case that they are fearful alone. There can be cases where concern is expressed by other persons; in fact the present case is such a case, having regard to the statement from the witness' mother, Mrs A, already read. A second comment should be added, which is this. The consequences need not necessarily be limited to those for the witness herself. There could be cases of concern for the consequences for the family of the witness rather than the individual, for example.

"Secondly, the evidence must be sufficiently relevant and important to make it unfair to the prosecution to compel them to proceed without it. But the greater its importance, the greater the potential unfairness to the defendant in allowing the witness to remain anonymous. In this context it seems to us that a distinction can properly be drawn, as the learned judge drew it here, between cases where the creditworthiness of the witness is or is likely to be in issue and others where the issue for the jury is the reliability and accuracy of the witness rather than credit.

"Thirdly, the prosecution must satisfy the court that the creditworthiness of the witness has been fully investigated and the results of that enquiry disclosed to the defence so far as is consistent with the anonymity sought.

"Fourthly, the court must be satisfied that no undue prejudice is caused to the defendant. 'Undue' is a necessary qualification because some prejudice is inevitable if the order in question is made, even if that prejudice is only the qualification placed on the right to confront the witness as one of the defendant's accusers.

"But there may be factors pointing the other way. Here, for example, the defendants could see the witness on the television video screen as she gave evidence. They could be sure, therefore, that she was no one whom they recognised or who, so far as they were aware, had any motive for giving evidence against them. That factor eliminates part of even the so-called 'theoretical possibility' referred to in the Watford Magistrates case, that any actual prejudice was caused.

"Finally, the court can balance the need for protection, including the extent of any necessary protection, against the unfairness or appearance of unfairness in the particular case. By referring to the extent of protection, we have in mind other courses which can be taken short of allowing anonymity to the witness. These include, for example, screening, a voice camera, a hearing in camera or whatever it may be."

23. The Lord Chief Justice then continued:

"17. In addition, we were referred, as was the judge in the court below, to the decision of this court in R v Jack (No 95/1248/Y3, 7 April 1998, unreported). There is only one passage of the judgment to which it is necessary to refer. At page 20 Kennedy LJ said:

"The security services do not have any passport to the use of screens, or to any other form of anonymity. Their position has to be considered as individual witnesses on a case by case basis. The Certificate of the Secretary of State may or may not satisfy the judge that they are at risk. Its chances of doing so will be enhanced if it is tailored to the individuals and the facts of the case, and in this case it can be said that the certificate was not tailored as well as it might have been, but it did provide evidence which the judge was entitled to accept."

24. In the first place, this was no routine application that the prosecution could expect to be granted without making out a clear case. As Kennedy LJ pointed out in Jack, neither security services nor, I would add, undercover police officers have any passport to anonymity. The issue has to be considered on a case by case basis.
25. Whilst any threat to the security of the operation in general was a factor, and an important factor in the exercise of this discretion, it was not the only factor. It is true that while there was no evidence of any specific risk to Billy if his true identity became known there is always a general risk to officers engaged in operations of this kind. This was a factor to be taken into account in the balancing exercise.
26. Also, the judge does not appear to have tackled properly the issue of prejudice to the defendant. Ordinarily, one would expect consideration to be given to the issue why it was necessary for the defendant to see Billy face to face. Why was his identity relevant? What was the defence?
27. It appears from the defendant's interview and from the answers to questions we put to counsel that the defendant does not dispute that contact with Billy took place but does deny supplying drugs to him. It is difficult to see, therefore, what prejudice he would suffer beyond that referred to in R v Taylor by the qualification placed on the right to confront Billy as one of his accusers. It does not appear that this point was made to the judge or that she considered it.
28. I have therefore come to the clear conclusion that the judge's exercise of her discretion not to allow Billy to give evidence from behind a screen so as to protect his identity was flawed.
29. This is not a case, nor indeed has it been suggested, where this court should exercise the discretion afresh. That in my view could only appropriately be done by remitting the case to another judge to consider the question afresh on the basis of all the appropriate material. There are, however, other matters to be considered before it can be decided whether such a course would be appropriate.
30. Following the decision of the district judge to refuse the use of a screen, the prosecution sought an adjournment in order to seek legal advice with a view to an application for judicial review. The judge refused this application. Neither counsel for the prosecution nor the court clerk record any reason for refusal. The judge in her statement, however, pointed out that adjourning a trial before the Youth Court pending an application for judicial review to the Administrative Court on a point of law is a practice frowned upon by that court. I agree with that observation.
31. The judge believed that she had made the correct decision on the screen, on the material and argument presented to her. Adjournments are to be avoided unless absolutely necessary, especially where the trial of a young person is concerned. In R v Hereford Magistrates' Court ex parte Rowlands [1998] QB 110; [1997] 2 WLR 854 Lord Bingham CJ said this:

"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 should be that justices should fully examine the circumstances leading to applications for delay, the reasons for those applications and the consequences both of the prosecution and the defence. Ultimately, they must decide what is fair in the light of all those circumstances. ... this court would only interfere with the justice's discretion whether to grant an adjournment in cases where it is plain that the refusal will cause substantial unfairness to one of the parties. Such unfairness may arise when a defendant is denied a full opportunity to present its case but neither defendants nor their legal advisers should be denied 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 not cause for complaint if his application for an adjournment is refused. See for example Queen v Macclesfield Justices Road Traffic Reports 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 sufficient administration and economy are in themselves very desirable ends."

32. What the judge was for some inexplicable reason not told was that the case could not continue and the prosecution would offer no evidence. Had she been told that she would no doubt have ventilated with the prosecution whether there were any other avenues down which the case could have proceeded such as, for example, tendering written evidence under Section 23 of the Criminal Justice Act 1988.
33. Before us, Ms Paterson, who has appeared for the appellant, albeit she did not appear in the court below, has persuaded us that there was in reality no other course and that the decision to offer no evidence followed inevitably from the refusal to adjourn.
34. In my judgment, the decision refusing an adjournment was flawed because it was based on an erroneous conclusion that the case could properly proceed with Billy giving evidence without the protection of a screen. In my judgment, the decision to refuse an adjournment in the circumstances as they are now known to be cause a substantial unfairness to the prosecution for it forced them into a position of not proceeding with the case.
35. Where does that leave the court in the present case? In my view, the decision to refuse the use of a screen, the decision to refuse an adjournment and the ultimate decision of the prosecution to offer no evidence were all inextricably linked; each followed the other. Ms Pasiuk for N argues that he was found not guilty following the Crown's decision to offer no evidence and that that is the end of the matter. The Crown cannot or should not be allowed to have that decision set aside.
36. A somewhat similar situation arose in the Director of Public Prosecutions v Birmingham City Justices [2003] EWCH 2352 Admin where justices unreasonably, and therefore unlawfully, refused an adjournment to the prosecution and the prosecution were thereby unable to continue with the case.
37. Crane J, with whom Maurice Kay LJ agreed, said this at paragraph 40:

"It follows, in my view, both from that case [and he was referring to the R v Neath and Port Talbot Justices ex p DPP [2000] 1 WLR 1376] which would be a case which this court should follow, and from the trend of authorities in the House of Lords, that an acquittal in circumstances such as these can be quashed subject to one further consideration. The further consideration is this: it may be that in some circumstances the prosecution would have options other than the offering of no evidence, and it could properly be said that therefore the acquittal did not follow necessarily from the refusal to adjourn."

38. He continued at paragraph 46:

"In the circumstances, I consider that the refusal to vacate the hearing made it inevitable, for practical purposes, that no evidence would have to be offered by the prosecution and, in my view, the magistrates would have realised that this would be the consequence. Clearly there is power to grant the first of the declarations sought."

39. (The first of the directions sought was that the decision not to adjourn was unlawful.) He continued:

"Clearly it is open to this court to quash the decision of the magistrates. Although the quashing of the acquittal is not specifically sought, in my view, it is open to this court to quash that acquittal. It is also open to the court that the case be remitted to the justices for trial."

40. For my part, I am satisfied that the prosecution in the present case were in the same position as the prosecution in the Birmingham Justices case. Once the decision refusing to adjourn had been made, they were left with no alternative option to proceed and therefore the decision to offer no evidence was one that inevitably followed the refusal of the adjournment.
41. For my part, I would follow the same course in the present case that was followed by this court in the Birmingham Justices case. Subject to my Lady's views, I would, (1) quash the decision to refuse a screen, (2) quash the decision refusing an adjournment, (3) quash the acquittal and, (4) remit the case to the Youth Court where it will have to be transferred, it seems to me, to the Magistrates Court because N is now over 18 years of age, and, (5) direct that the issue of the use of the screen be reheard by a different district judge immediately before the commencement of any further trial.
42. I would add one further matter. There has been considerable passage of time since the decisions giving rise to this application. They were made last March. The Crown Prosecution Service could, and in my view should, have been more expeditious in their pursuit of judicial review. In the end, however, I have come to the conclusion that their delay should not prevent the granting of the discretionary relief that they seek.
43. Should N be convicted after a further trial, I anticipate that the court will not sentence him any more severely than had he been sentenced as a person under the age of 18. For these reasons, I would allow the application and grant the orders I have indicated.
44. MRS JUSTICE RAFFERTY: I agree.
45. LORD JUSTICE SCOTT BAKER: Ms Paterson, are you content the case should be remitted to the Youth Court with a view to transfer? Otherwise it is not clear in my mind to where you should remit it.
46. MS PATERSON: I am indeed.
47. LORD JUSTICE SCOTT BAKER: Any objections?
48. MS PASIUK: My Lord, I make the observations I made in the course of my submissions, that in fact if the matter was to follow that course, which obviously I cannot object to given your Lordship's ruling, well I certainly will not -- I would not want to consent to it as counsel but obviously --
49. LORD JUSTICE SCOTT BAKER: I am simply asking if you have any objections it should go back to the Youth Court.
50. MS PASIUK: Whether the Youth Court has any jurisdiction is a point I made earlier.
51. LORD JUSTICE SCOTT BAKER: You obviously have to because it is a change of age but that seems a more practical course deciding whether we have jurisdiction to send it anywhere else.
52. MS PASIUK: Of course, certainly on his behalf I would not be consenting for it to be transferred.
53. LORD JUSTICE SCOTT BAKER: I am not asking for consent, I am simply asking for observations.
54. MRS JUSTICE RAFFERTY: My Lord, Lord Justice Scott Baker, says that the appropriate receiver is the Youth Court. Would he have to move to the adult court or direct from here to the adult court?
55. MS PASIUK: Certainly not the latter course. It is to be the main course. I am certainly not consenting to that but that is certainly the court's view.
56. LORD JUSTICE SCOTT BAKER: Thank you.