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
		15th November 2005

1. LORD JUSTICE GAGE: This is an application for judicial review. The claimants seek to challenge the decision of District Judge Tain sitting at Mid Sussex Magistrates' Court made on 21st June 2005. On that date he adjourned the claimants' summary trial at the request of the prosecution, the respondent to this application. The application for judicial review proceeds with the permission of the single judge.
2. By the order of the District Judge, the trial was adjourned to be fixed for a date in January 2006. The facts so far as are relevant for the purposes of this application are as follows. The claimants, mother and daughter, face charges of harassment and assault with intent to resist arrest. The background to the offences is complicated. The first claimant had a son named Gary who died in 2003. The complainant in the harassment charge is the mother of Gary's child. She alleges that the claimants have subjected her to harassment in order to secure access to her child, and also harassment over the circumstances of Gary's death. The assault charge arose from an alleged incident between the claimants and the complainant's mother.
3. The claimants appeared before the Magistrates' Court on 28th January 2005 when the case was set down for trial between 20th June 2005 and 5th July 2005. The lengthy period of adjournment to that date was caused by the number of witnesses to be called by each side (we are told a total in excess of 20) and the complexity of the background to the case. Despite several requests by the claimants, primary disclosure was not received from the prosecution until 27th May 2005. This allowed only a very short time for service of the defence statement and secondary disclosure, if any. The claimants' solicitors took the view that the late service made the trial date unrealistic and on 10th June 2005 application was made by the claimants' solicitors to vacate the hearing date. On the same day, the defence statement was served on the prosecution.
4. The application to adjourn was opposed by the prosecution. District Judge Tain refused the adjournment and directed that both sides work together to keep the date effective. On 20th June 2005, the first day of the trial, the claimants were served with what is said to have been minimal disclosure and not a proper response to the defence statement. It did not deal with a list of requests submitted to the prosecution by the claimants on the direction of the District Judge following the hearing of 10th June 2005.
5. The case was adjourned in an attempt to resolve the disclosure issues and on 21st June 2005 there were further attempts to save the trial date. However, the prosecution subsequently conceded that a substantial amount of relevant material had not been either obtained or reviewed or served and it had therefore not complied with its disclosure obligations. We have seen witness statements from two witnesses from the Crown Prosecution Service, in the first of which the witness states that she could not at that time conscientiously say that she had carried out her duties so far as disclosure was concerned.
6. Having so concluded, the prosecution sought an adjournment. The head of the Criminal Justice Unit attended the court and explained that the Crown Prosecution Service reviewing lawyer had initially been on sick leave and the case not reallocated. The Criminal Justice Unit was generally under-staffed. The lawyer in the case had been on annual leave and the defence case statement served by the claimants had been passed between the Crown Prosecution Service and the police, with neither side dealing with it. The claimants opposed the application. Various decisions of this court were placed before the District Judge. It was argued that the trial date should be kept and that the matter should proceed. It was, we have been told today, then sought to be argued that because insufficient disclosure had been made, the claimants were prevented from having a fair trial and so the District Judge would have been asked to dismiss the summons.
7. The District Judge considered the submissions and then gave a reasoned ruling for granting an adjournment. His reasons are most conveniently set out in the statement of facts served by the claimants in this application. I quote from paragraph 15 of the statement of facts. The District Judge stated that:

"He must exercise his discretion judicially with enquiry that unlike the authorities referred to, the prosecution have provided an explanation. The explanation was an acknowledgment that through overwork, unsatisfactory systems and staff turnovers, aspects of the case had not been dealt with. The explanation was one of failure and, to an extent, incompetence, that in terms of delay there was no prejudice because it would still be possible to have a fair trial in December, that he acknowledged refusing the defence application a few days before, that although the criminal proceedings overlapped with family proceedings those proceedings could continue despite this case, that the prosecution reason was unsatisfactory but looking at the interests of the public at large it was in the interests of justice to adjourn. The costs would be decided at the end of the trial."

8. Following that ruling, in due course the claimants sought a judicial review of that decision. The application for judicial review was made on the last possible date but the respondents take no point in respect of that. The first issue that arises on this application is one raised in the skeleton argument of the respondent. It is that this court has no jurisdiction to deal with this application. That is the first matter which we have to decide. Miss Hay on behalf of the respondent submits that the court has no jurisdiction to deal with the matter on the basis of a decision of this court in R v Rochford Justices ex parte Buck [1979] 68 Cr.App.R 114. On behalf of the claimants, Miss Levinson seeks to distinguish this case from Buck and others and refers to various authorities for the proposition that the court has jurisdiction to deal with this application.
9. In view of the conclusion which I have reached in relation to the main issue, the merits of the judicial review of the decision by the District Judge to adjourn, it is unnecessary for me to deal in any detail with the submissions in respect of jurisdiction, suffice it to refer to one or two of the decisions of this court.
10. In Watson v Dartford Magistrates' Court [2005] EWHC 905 Admin, the Divisional Court took a robust view in circumstances very similar to these in this appeal. The issue in that case was whether the application by the prosecution should have been granted allowing the application by the defendant to proceedings in the Magistrates' Court challenging the Magistrates' decision to allow the prosecution adjournment. Mitting J, giving the first judgment of the court, referred to the case of Buck. He said at paragraph 7 of the judgment, having cited the passage in Buck:

"I accept that that is the normal rule that in this as in other cases the prosecution would not doubt say at the conclusion of a trial resulting in a conviction that it was too late for the claimant to complain about an adjournment that should not have been granted before. In a case such as this where the issue is straightforward and the principle clear, I do not see that there is any fetter in this court intervening."

11. Not cited in that case was a previous decision of the Divisional Court in which Kennedy LJ, giving the judgment of the court in Hoare Stevens v Richmond Magistrates Court, said that in his judgment the Divisional Court was bound by the decision in Buck. In Esson v DPP [2005] EWHC 1072 Admin, a decision given six days after the decision in Watford v Dartford Magistrates' Court, Beatson J, giving the first judgment of the court, referred to all the relevant authorities in relation to the jurisdiction issue. At paragraph 20 of the decision he said this:

"While the decision in the Buck case concerned a ruling as to the admission of evidence after the commencement of the trial, it appears from the passage I have read from Blackstones and the cases cited, in particular Load and Others v Director of Public Prosecutions [1990] 1 QB 1052, that this applies to other rulings."

The court nevertheless went on to deal with the appeal which was an appeal by way of case stated. Beatson J, giving his reasons at paragraph 22, stated:

"In view of the time that has passed since the decision of the Justices and the fact that the trial took place, a trial at which the defendant was able to make his legal and other submissions . . . I am troubled by the idea that the appellant, having decided not to seek judicial review of the decision to adjourn, is now entitled to come forward and challenge the decision made on 30th December 2002. Nevertheless, in view of the position in the authorities in relation to case stateds and the fact that the Justice in this case has stated a case, this court must deal with it."

Sedley LJ in Esson in his judgment agreed with the decision of Beatson J and said that the question of jurisdiction in cases such as this was a matter which might at some future date have to be reviewed. In view of the conclusion that I have reached on the main issue, this is not a case in which it will be reviewed.

12. For my part, I am inclined to the view expressed by Mitting J in Watson v Dartford. However, it is unnecessary, nor it is appropriate, for me to go any further. So far as the merits are concerned in this case, Miss Levinson relies on a number of matters which she submits ought to cause this court to interfere with the decision of the District Judge. These matters are fourfold. First, she relies on the fact that the fault that caused the first adjournment was that of the respondent. Secondly, there was, as a result, a considerable delay which must be added to the already substantial delay from the date when the summonses first came before the court up until the time when the adjournment was sought. Next, she submits that there was no proper explanation for the delay from the respondent. All these factors, she submits, are matters which the District Judge ought to have taken into account and given far greater weight to than he apparently did. She submits that those factors were not to be, in her words "trumped" by the public interest factor which appears to have been the determinative factor in the District Judge's decision.
13. We have been referred by each counsel to a number of decisions of this court dealing with applications for judicial review, or by way of case stated, of decisions by Magistrates to adjourn. It is unnecessary to refer to any of them in detail, save for a passage in the case of R v Hereford Magistrates' Court ex parte Rowlands [1997] QB 110. Giving the first judgment of the court, Lord Bingham LCJ (as he then was) said at page 127:

"The decision whether to grant an adjournment does not depend upon a mechanical exercise of comparing previous delays in those cases with a delay in the instant applications. 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 decide what is fair in the light of all those circumstances. The 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 the trial without good reason has no cause for complaint if his application for an adjournment is refused: see, for example, R v Macclesfield Justices ex parte Jones [1983] RTR 143. In deciding whether to grant an adjournment the Justices will bear in mind that they have a responsibility for ensuring as 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."

In this case Miss Levinson submits that speed was a matter to be considered and put at the forefront of the decision.

14. There is another passage in Esson, to which I have referred earlier, which throws some light on the approach of this court to applications for judicial review of such decisions. Beatson J, having referred to and cited a passage from a decision of the Court of Appeal Criminal Division in R v Chaaban [2003] EWCA Crim 1012, in which the court had held that a reasoned decision of the judge could not be challenged, said at paragraph 30:

"That was, however, said in the context of a case in which a ruling with reasons was given in response to the submissions made by the parties. In the present case, as in the application against the Highbury Corner Justices made by Mr Stern, no reasons were given. In these circumstances, we have no information before us upon which we can be satisfied that the Justices did take into account relevant considerations and exclude irrelevant considerations. It is possible that what weighed them was the factor referred to by Bingham LJ in the Abbeydale Justices case, that is the interest of the prosecution that a serious charge properly preferred by the defendant should be the subject of proper adjudication and that the result of refusing an adjournment would, as Miss Nash stated it would be in this case, be the collapse of the prosecution. If this was the case and if they had articulated this even in the brief form in W's case, for the reasons given by Lord Justice Bingham CJ the Hereford Magistrates case and the Court of Appeal Criminal Division in Chaaban, it is very unlikely that this court would interfere with that decision."

15. Although, as I have said, we do not have a transcript of the District Judge's ruling, the summary of his decisions is fairly set out in the statement of facts. It seems to me that the District Judge carefully considered all the factors and in particular the fact that the reason for the adjournment was the prosecution's failure to comply with its obligations in respect of disclosure. The District Judge appears to have concluded that the explanation was one of failure and, to an extent, incompetence. He went on to balance the other factors, including delay and prejudice to the claimants as well as the public interest.
16. For my part, I find myself quite unable to say that his reasoned decision was irrational or perverse in the Wednesbury sense. In the circumstances, in my judgment, this application for judicial review must be refused.
17. MR JUSTICE OPENSHAW: I agree.
18. LORD JUSTICE GAGE: Thank you very much.
19. MISS LEVINSON: My Lord, can I make an application for costs to be assessed and taxation?
20. LORD JUSTICE GAGE: Yes, you had the permission of the single judge. I think you are entitled to that. Thank you very much.